If Supreme Court upholds TikTok ban, U.S. will see first-of-its-kind act of censorship | Opinion

The Supreme Court is scheduled to hear oral arguments this Friday in one of the most important free speech cases in history. The question before the justices? Is a federal law outlawing TikTok a violation of the First Amendment?

With the TikTok ban scheduled to go into effect later this month, on January 19, the justices have given themselves a very short time to decide an issue of great significance.

Last April, President Joe Biden signed the “Protecting Americans from Foreign Adversary Controlled Applications Act” into law. The act identifies four countries, including China, as foreign adversaries of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.” The law prohibits TikTok in the United States as of Jan. 19 unless its owner, ByteDance, sells it by then (Biden remains the nation’s president until Donald Trump’s inauguration on Jan. 20).

Under the law, the president may grant a 90-day extension if there is significant progress being made toward a sale of TikTok. At this time, there is no reason to believe that there is a basis for this extension. ByteDance has given no indication that it is interested in a sale.

Practically speaking, this means that if the law goes into effect, the TikTok app will no longer be available to download in the United States and U.S. users would no longer be able to update the app (it is unclear whether the federal government would try to block the use of TikTok by users who already have the app downloaded).

This law is an unprecedented restriction on free speech. Never before in American history has the government tried to ban a medium of communication. It is estimated that over 170 million Americans use TikTok. It is difficult to think of any law in American history that restricted so much speech for so many people.

Nonetheless, on December 6, 2024, the United States Court of Appeals for the District of Columbia Circuit upheld the federal law outlawing TikTok. The judges acknowledged the impact of the law on freedom of speech, but they accepted the government’s argument that national security concerns justified the ban.

On examination, however, the two national security justifications given by the court are weak: One is unproven and the other is at odds with basic principles of freedom of speech.

First, the court said that China, through TikTok, could gather information about U.S. residents. While it is true that every app allows those administering it to gather information about users, the real question — which the court did not answer — is exactly what information might be obtained and how this information could be used by China in a manner that threatens national security.

Knowing how many people are watching a TikTok dance video hardly seems to be a basis for national security concerns. And because the federal law is a staggering restriction on speech, there must be a real, proven danger — not merely conjecture.

Second, the court said that China could attempt to use TikTok to influence attitudes, including about politics, in the United States. But the premise of the First Amendment is that more speech is inherently better regardless of its source. Never before has the Supreme Court allowed a restriction of speech because it might change minds and attitudes. Even during the height of the Cold War, the United States allowed the Russian newspaper Pravda to be sold in this country.

If the government can stop foreign countries deemed adversaries from speaking in this country, there will be vast power to censor and stop Americans from receiving speech. The government could ban China from selling books or magazines in this country or stop foreign media companies like Al Jazeera from operating.

The ban on TikTok is based on the premise that people will be better off with less access to speech. That, however, cannot be reconciled with the First Amendment.

It is good that the Supreme Court immediately took this case, but it is baffling why it did not stay the law from going into effect and give itself more time to reach a decision. President-elect Trump has given the court a way to do this: In a friend of the court brief last week, Trump asked the justices to delay the law’s effective date to give him time “to pursue a negotiated resolution.” Perhaps the court will seize on this as a way for delay.

But assuming the court hears the case as scheduled and decides, we will know very soon whether TikTok is banned. If the justices agree with a lower court ruling that found the ban on TikTok was justified, the American people will experience censorship of a sort unknown in this country’s history.

This story was originally published January 8, 2025 at 9:47 AM with the headline "If Supreme Court upholds TikTok ban, U.S. will see first-of-its-kind act of censorship | Opinion."