January 20, 2025
And even though the “I was for it before I was against it” crowd against the ban now stretches from Chuck Schumer to Donald Trump, that doesn’t mean they’re right.
(Photo illustration by Costfoto / NurPhoto via Getty Images)
On Friday, the Supreme Court upheld the Protection of Americans from Apps Controlled by Foreign Adversaries Act, a law that would have required China’s state-owned Bytedance to get rid of Tiktok or ban the app from US platforms (individual users of the app would not be subject to criminal prosecution). The court’s summary judgment in this case is very good news for the future of state and federal regulation artificial intelligenceand for efforts to hold social media corporations accountable for the harm they cause, and for efforts at the state and local level to ban super PACs of foreign corporations. There are even signs that the court may finally be open to moving past a neoliberal vision of the First Amendment.
What is most impressive solution this is what the Supreme Court did not do. First, it does not accept the premise that any regulation of social media requires increased scrutiny. This position, championed by both the ACLU and the social media giants, would mean that whenever the government increases the liability of a social media platform for harm it causes or enables, or bans forms of social media design it deems harmful, the federal judges will have to view these laws with suspicion and scrutinize their rationale, most likely overturning them.
There was a strong possibility that the court would take this position, with both Justice Gorsuch and Justice Sotomayor simultaneously opposing the other seven justices for refusing to adopt an automatic standard of heightened scrutiny. But Justices Jackson, Barrett, Kagan, Kavanagh, Thomas, Roberts and Alito resisted using the case to develop a framework for thinking about social media and the regulation of artificial intelligence, acknowledging that it could limit the future.
Instead, the court showed a real openness to the idea new technologies raise new difficult questionsand some of the regulation of these new technologies may have only an incidental effect on speech rather than being a direct regulation of speech itself. This means that antitrust laws, data protection laws, and design code laws for social networks are likely to go forward – laws that the public needs more than ever given the enormous power of Big Tech platforms.
(While some supporters argued that TikTok’s ban was motivated by hostility to a particular point of view, the court rejected that argument, rightly stating that when the law is motivated by an attempt to censor a certain point of view, this law really needs to be studied more carefully.)
In another nice nod to the fact that antitrust regulation is not content-oriented, the court also clearly recognized that laws governing the structure of corporate control should not be viewed as direct regulation of expressive activity or semi-expressive behavior.
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The court also, while not deciding precisely on the level of scrutiny, treated the TikTok ban as an intermediate test and said it would withstand such scrutiny, indicating that there may be a broad category of regulations that fit that category, while sending a clear a signal to states and the federal government that technology regulation is not off limits.
Finally, the TikTok opinion also recognized that there are laws that incidentally affect foreign language different in character. This is good news for those growing up efforts to ban corporations which are partially owned by foreign companies due to contributions to super PACs. Representative Jamie Raskin has introduced a bill that does just that, and some cities have already passed such a ban.
Speaking of Congress, what a mess the TikTok bill, which passed with strong bipartisan support, is causing now that it’s actually going into effect! Schumer, who championed the law then, is now trying to position himself as the savior by trying to block it — and he’s not alone in his inconsistency. Trump initiated a policy to get rid of TikTok — and now he’s inviting TikTok’s CEO to take a prominent place at his inauguration. Joining the “for it before I was against it” crowd is a safe bet now that public fury is on the rise, but that doesn’t make it the right place to be. It’s actually a good idea to prevent foreign adversaries from owning a massive communications infrastructure. There’s a reason we do it all the time on radio and television.
You could be forgiven if, as a progressive fan, you’ve heard many reports indicating that this decision was a bad one. The ACLU, for one, responded alarming press release criticizing the decision and calling it an endorsement of government censorship.
But the ACLU’s position on the matter is what it was Buckley v. Valeo (a case in which a court held that donating or spending money on political campaigns is a form of speech) and Citizens United (a decision in which the court struck down all limits on political spending by corporations and outside groups, and which the ACLU noted)—is that corporations deserve maximum speech protection and that government regulation of political activity is suspect. In other words, if you want a voice for people over corporations, the ACLU is not the organization to turn to for analysis. They were the key driving forces behind the Free Speech for Corporations agenda, which made sensible, content-neutral laws very difficult to pass or enforce.
Instead of being anti-speech, TikTok’s decision actually suggests that the court — with its current lineup of very strange bedfellows — may finally be abandoning the broken 1970s model of corporate First Amendment free speech. Big Tech has broken a lot of things, and it may be finally breaking the neoliberal First Amendment consensus that has ruled for 40 years.
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