After months of debate, restrictions on the ownership of the popular app TikTok are heading to a federal court, raising a series of constitutional questions about free speech and national security.
On May 7, 2024, TikTok Inc. and its parent company, ByteDance Ltd., filed a petition in the United States Court of Appeals for the D.C. Circuit against Attorney General Merrick Garland. They argue that the Protecting Americans From Foreign Adversary Controlled Applications Act, recently passed by Congress, is unconstitutional.
The act was included in an aid package signed by President Joseph Biden on April 24, 2024, making it “unlawful for an entity to distribute, maintain, or update . . . a foreign adversary controlled application.” TikTok Inc. and ByteDance Ltd. are listed as “foreign adversary controlled applications” because of their association with China.
Among the various items listed in TikTok Inc.’s petition are several core First Amendment arguments. “By banning all online platforms and software applications offered by ‘TikTok’ and all ByteDance subsidiaries, Congress has made a law curtailing massive amounts of protected speech,” the petition claims.
The act forces ByteDance to divest ownership in the U.S. version of TikTok within one year, which the petitioners claim is problematic for legal, financial, and technological reasons. They also cite four years of work with the U.S. government to set up a system of data safeguards, including giving the government the technical ability to “shut down” TikTok if the app violates guidelines.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” TikTok argues.
The First Amendment’s National Security Exception
While the First Amendment protects free speech from government regulation, there are exceptions including speech related to obscenity, defamation, fraud, incitement, fighting words, true threats, and criminal conduct. Another exception exists when the government decides to chill free speech if there is a compelling national security interest.
Traditionally, declared wars and armed conflicts led to widespread free speech and press restrictions. During the 1798 Quasi-War with France, Congress passed the Sedition Act, signed by President John Adams. The act made it a crime to “print, utter, or publish . . . any false, scandalous, and malicious writing’ about the federal government. The act was used to jail newspaper publishers until 1801.
During the Civil War, the federal government restricted free speech and press rights for national security reasons. In the era of World War I, President Woodrow Wilson promoted passage of the Sedition Act of 1918. The act barred “use in speech or written form any language that was disloyal to the government, the Constitution, the military, or the flag,” among other offenses. The Espionage Act of 1917 also prevent publishing information “used for the injury of the United States.” The Sedition Act of 1918 was repealed in 1921, but a version of the Espionage Act remains in force today.
In 1931, the Supreme Court in Near v. Minnesota held in a 5-4 decision that placing prior restraints on publishing content was a form of censorship. In the majority decision, Chief Justice Charles Evans Hughes cited William Blackstone’s Commentaries on the Laws of England: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published,” Blackstone wrote.
The Court later defined prior restraint limits in the New York Times v. United States, otherwise known as the “Pentagon Papers” case, from 1971. The Nixon Administration sought to block the publication of Vietnam War classified documents leaked to The New York Times and The Washington Post, citing national security grounds. A majority of justices ruled in favor of the newspapers. “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment,” wrote Justice Hugo Black in his concurrence.
Which Scrutiny Test Applies?
A key part of TikTok Inc.’s argument to the appeals court is that its app is engaged in “editorial and publishing activities” and TikTok conducts its own core free speech through its user-driven publishing platform. Therefore, TikTok claims the law is subject to the most severe constitutional free speech test, called “strict scrutiny.”
Under strict scrutiny, the burden is on the government to prove it has a compelling interest in limiting a constitutional protection such as freedom of speech or press, and it is using a narrowly tailored means via the law to achieve those interests. The government also must prove it is using the least restrictive means possible.
TikTok argues that the recent act of Congress is a classic example of an unlawful prior restraint suppressing speech in advance of its actual expression. It also believes the act fails the strict scrutiny test because it is “based not on any proof of a compelling interest, but on speculative and analytically flawed concerns about data security and content manipulation—concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means.”
However, it is possible that the appeals court could consider TikTok case under a less-restrictive test, intermediate scrutiny. In such cases, the law must further an important government interest and use means to achieve that interest that are no more burdensome than needed.
In November 2023, a federal judge in Montana ruled against a state law that proposed a TikTok ban. Judge Donald W. Molloy felt the state law violated the First Amendment, and he believed the argument was stronger to apply intermediate scrutiny in that specific case. Molloy said the state law burdened more free speech than necessary and did not “leave open any alternative channels for targeted communication of information.”
Scholar Alan Z. Rozenshtein, writing in the blog Lawfare, believes the federal appeals case may not come down to a definition of which scrutiny test to apply. “When the law inevitably arrives at the Supreme Court, the justices will be tasked with weighing for the rest of the country the salience of the speech interests tied up in the platform against the national security interests of excluding one form of Chinese influence from nearly half of the American population,” Rozenshtein concluded.
Other factors that set the federal TikTok case apart from the Montana case include the widespread bipartisan support of Congress and President Joe Biden for the act based on national security grounds. In the past, the courts have deferred to Congress and the president on national security matters on certain occasions.
In Holder v. Humanitarian Law Project (2010), Chief Justice John Roberts wrote for a 6-3 majority about free speech claims made by two foreign groups designated as terrorists by Congress. “Our precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role,” Roberts said. “But when it comes to collecting evidence and drawing factual inferences in this area, ‘the lack of competence on the part of the courts is marked,’ and respect for the Government’s conclusions is appropriate.”
Scott Bomboy is the editor in chief of the National Constitution Center.
