In the oral arguments of TikTok v. Garland, TikTok’s legal team articulated a powerful defense centered on the First Amendment, arguing that any government action forcing TikTok’s shutdown or divestiture would impose an unconstitutional burden on free speech. Here’s the core argument TikTok should continue to make, supported by relevant case law:
1. The First Amendment Protects TikTok as a Speech Platform
TikTok’s central argument is that it is not just a technology company but a forum for free expression. Millions of Americans use the platform daily to share opinions, create art, and participate in the digital marketplace of ideas. A government-imposed divestiture or ban would silence these voices, directly implicating the First Amendment.
Relevant Precedent:
- In Packingham v. North Carolina (2017), the Supreme Court recognized social media platforms as the “modern public square,” essential for the exercise of free speech. Banning TikTok would violate this principle by excluding millions from a critical space for expression.
- The argument also echoes Reno v. ACLU (1997), which invalidated overly broad government regulations of the internet, emphasizing that digital spaces deserve robust First Amendment protections.
2. Targeting TikTok Is a Content-Based Regulation
The government’s justification for regulating TikTok revolves around fears of content manipulation and misinformation. However, these concerns inherently target the content on TikTok’s platform, making the proposed actions content-based regulations, which trigger strict scrutiny under First Amendment doctrine.
Relevant Precedent:
- In Reed v. Town of Gilbert (2015), the Supreme Court held that content-based laws must satisfy strict scrutiny by serving a compelling government interest and being narrowly tailored. TikTok’s defense emphasizes that the government’s fears of potential content manipulation are speculative and cannot justify a blanket ban or divestiture.
- TikTok compared the case to Simon & Schuster v. Members of the New York Crime Victims Board (1991), where a law requiring proceeds from certain books to be placed in escrow was struck down as an unconstitutional content-based regulation. TikTok argues that the burden on its ability to curate content through algorithms is even more severe.
3. Forced Divestiture Burdens TikTok’s Speech Directly
The government’s demand that ByteDance divest TikTok fundamentally changes TikTok’s ability to operate as it does today. By forcing TikTok to separate from its global engineering and algorithmic infrastructure, the government impairs its editorial discretion and the platform’s ability to provide users with the content they expect.
Relevant Precedent:
- In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court held that compelling a private entity to alter its editorial process violates the First Amendment. TikTok similarly argues that its recommendation algorithm—a key part of its “editorial discretion”—is protected speech.
- TikTok’s legal team also invoked NetChoice v. Paxton (2023) and NetChoice v. Moody (2022), where courts ruled that platforms’ decisions about content moderation are protected by the First Amendment, framing TikTok’s algorithm as a modern form of editorial choice.
4. National Security Concerns Must Be Addressed Without Banning Speech
The government’s argument hinges on two primary claims: concerns over data security and fears of covert content manipulation. TikTok contends that these concerns, while serious, can be addressed through less restrictive measures that do not burden free speech.
Relevant Precedent:
- In United States v. O’Brien (1968), the Court allowed restrictions on expressive conduct only if they were unrelated to the suppression of free expression and narrowly tailored. TikTok argues that the government has failed to explore less restrictive alternatives, such as enhanced data privacy regulations or targeted transparency requirements.
- The case also parallels Lamont v. Postmaster General (1965), where the Court struck down a law requiring recipients of “communist propaganda” to affirmatively request the materials before receiving them. The Court emphasized that mere exposure to foreign influence does not justify curtailing access to speech.
5. Implications for Other Platforms and Speech
TikTok’s defense highlights the broader implications of targeting a single platform based on its ownership. If the government can ban TikTok due to its foreign ties, it sets a dangerous precedent for regulating any platform deemed politically inconvenient.
Relevant Precedent:
- The Court in Sorrell v. IMS Health Inc. (2011) invalidated a Vermont law restricting pharmaceutical marketing, emphasizing that targeting specific speakers or industries for their speech violates First Amendment principles. TikTok argues that Congress’s focus on it, as opposed to similarly situated platforms, is discriminatory and constitutionally suspect.
Conclusion: Protecting the Marketplace of Ideas
TikTok’s legal team should continue to emphasize that banning or forcing divestiture is not only unnecessary but also unconstitutional. The First Amendment exists to protect against government overreach into speech, even in the face of perceived threats. TikTok’s case is a critical test for the future of free expression in the digital age. The courts should recognize that national security concerns, while important, cannot justify silencing millions of voices on a platform that has become a vital part of the modern public square.
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