Whether we agree with the Biden administration’s arguments or not, progressives should not support the court’s decision in favor of Tik Tok.
On Thursday (January 10), the Supreme Court is holding special, extended, two-hour oral arguments on the emergency petition. The question before them is whether forced withdrawal is looming TikTok is constitutional in the United States.
But the case is about much more than whether the United States should allow Chinese-controlled TikTok to operate in the United States. It is about corporate speech rights and the nature of national sovereignty. Even if you don’t agree with Biden’s argument about TikTok, you shouldn’t advocate for the court to overturn the law. You have to root for this lawsuit, which can become a happy corporate right to say nothing.
That’s because there’s a real possibility that a court could reject TikTok’s specific claim, but still give big tech companies a road map to insulate themselves from regulation by describing social media rights in broad First Amendment terms.
An emergency petition was filed by TikTok asking the court to temporarily block enforcement of the Protection of Americans from Foreign Control Programs Act (PAFACA). Signed into law last April, PAFACA uses an existing framework that designates China, Russia, Iran and North Korea as “foreign adversaries” and prohibits the US from using programs controlled by such countries. Without court intervention, the Chinese government-controlled ByteDance will have until January 19 to sell TikTok.
TikTok’s constitutional argument relies on corporate free speech cases. They and their supporters argue that (a) TikTok has its own First Amendment rights, (b) Americans use TikTok to share information and express themselves, and (c) because a law limiting who can own it could lead to a repeal by the Chinese government from these Americans in general, the law violates the First Amendment rights of American users. no wonder it quotes Citizens United in support of all these requirements.
By the 1970s, such an argument would have been patently invalid. Restrictions on the involvement of foreign governments in domestic politics are taken for granted as a sign of sovereignty around the world. While TikTok emphasizes that it is a communications platform to support its arguments, sovereign restrictions on foreign ownership have been particularly concentrated in the communications industry. Argentina, Canada, USA and many other countries have restrictions on foreign ownership television and radio networks. TikTok is banned on official devices in the European Union, the UK and Austria, and is also completely banned in India due to China’s ownership. In November, the Canadian government demanded that TikTok liquidate its Canadian business.
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The Founding Fathers built into our constitutional framework limits on interference by foreign governments. At the Constitutional Convention, Alexander Hamilton warned that “foreign states will not be idle spectators either. They will interfere, the confusion will increase.” Clause on foreign salary, which we know all too well— at least because of Trump’s repeated violations — prohibits federal officials from accepting payments from foreign governments. The high bar for treaty ratification was raised by James Madison’s fear of “foreign powers” interfering with treaty negotiations.
US laws consistently apply restrictions on foreign ownership in the communications sector. Driven by fears that foreign adversaries might use radio to influence policy, Congress passed the Federal Radio Act, which allowed the FCC’s predecessor to license radio companies and added 20 percent limit on foreign shares to the limitations of the 1912 act. Communications Act of 1934 includes a section that prohibits a foreign government or its agent from holding any radio license. The constitutionality of these rules was taken for granted.
A series of cases in the 1970s that had nothing to do with foreign ownership — but everything to do with a new understanding of the First Amendment — set the stage for the questions facing the court this week.
Two great cases of the 1970s, Virginia State Board of Pharmacy and Belottireframed the First Amendment as not only the right to to speak but also the right to to hear— including corporate speech. The first case, brought by Ralph Nader and Public Citizen, found that corporations could not be restricted in pharmaceutical advertising because consumers had a right to hear the ads. The second, Justice Powell’s opinion—with that well-known radical William Rehnquist dissenting—concluded that members of the public had a right to hear the political beliefs of banking corporations, and therefore states could not prohibit corporate speech around the referendum.
It was a clever ploy that sounded smart, but in practice led to an explosion of corporations using the First Amendment to override any laws that limited their power. The most famous of such cases was Citizens United v. FECwhich relied on Belotti to conclude that people had a right to hear corporate advertisements about candidates for office.
One question that has plagued all of these cases has been the one now at issue in the TikTok case: If corporate speech rights are based on Americans’ right to hear, shouldn’t foreign governments get the same protections through display? How can there be a “right to hear” ExxonMobil ads without a “right to hear” Russian ads?
I believe the whole “right to hear” thing was a misinterpretation of the First Amendment, and while courts should strike down discretion-based restrictions, they should allow the states and federal governments to impose content-neutral regulations on corporate speech. But I don’t think the rush of New Year’s oral arguments is the time to deal with all these issues.
Another big potential problem is how the court characterizes the “speech rights” of the social networks themselves. In a number of cases, including Netchois v. Moodythe court repeatedly raised the question of how to think about algorithmic channels. The ACLU, which has been fighting ever since to expand corporate speech rights Buckley v. Valeofiled a brief seeking a broad vision. But it could mean that states won’t be able to limit the targeting of social media to teenagers or regulate potentially dangerous algorithms (such as those that a deluge of anorexic teenagers with weight loss videos).
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Politics is everywhere; Donald Trump tried to demand the sale of TikTok during his first administration, but changed his mind after billionaire TikTok investor Jeffrey Yass became one of his biggest donors. Biden supports the law, as do most Democratic lawmakers, but public support soaredand now it is largely unpopular. Even if the Supreme Court upholds the law, Trump has several options effectively flip the waiver requirement — after he becomes president.
I have read several of the prosecutors’ briefs filed in this case and found them to be a bit off. SCOTUS gave interested parties less than two weeks to file briefs over the holiday break, so members of the court are sloppy about the Supreme Court’s arguments. I would include short I filed in this category—although I follow the arguments, the citations were only checked once and the structure was combined. So why the file at all?
For me, the urgency of submission flowed from the long echo Buckley v. Valeothe first case in which the Supreme Court found that money is speech. It was another hastily decided case where justice put speed over thoughtfulness so that they could rule until the 1976 elections. They ended up splitting the baby: they kept the contribution limits while lowering the spending limits, and turned four generations of politicians into professional fundraisers instead of representatives. It effectively institutionalized corruption in America. We don’t need such Solomonic wisdom anymore.
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