The Supreme Court’s TikTok decision has created a loophole in the First Amendment

By Jared Schroeder

The Supreme Court added an asterisk to First Amendment safeguards when it upheld the government’s ban on TikTok earlier this month.

The court, in an unprecedented decision, concluded the government does not violate the First Amendment when it bans a communicator—as long as its parent company is based in a nation labeled by the government as a foreign adversary.

That “as long as” hadn’t existed before. Previous Supreme Courts ruled vociferously against government censorship of any kind. The Supreme Court concluded in 1963, for example, "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Eight years later, while the Vietnam conflict raged, the justices brushed aside the government’s claims that The New York Times’ publication of the Pentagon Papers represented a national security risk.

That was a different Supreme Court. After the TikTok decision, the entire area of prohibitions against government censorship includes a new asterisk. An exception. For the first time, there is a Supreme Court precedent that supports a government ban on a specific communicator.

TikTok’s case challenged a law that required its parent company, China-based ByteDance, to divest itself of TikTok by Jan. 19 or the app would be banned in the United States. The government argued, and justices agreed, the ban did not represent a First Amendment problem because it did not limit any specific speech, and the only actor whose expression was being limited was a Chinese firm, which does not enjoy First Amendment rights.

The court, in an unsigned opinion, concluded, “A law targeting a foreign adversary’s

control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny.”

The government’s decision, in other words, to go after the ownership, circumvents the First Amendment concerns that would normally be present when the state seeks to ban an entire communication tool.

This might seem like a reasonable line of thought, if we ignore two things. First, TikTok is used by more than 170 million Americans as a tool for expression. That expression might not come in the form of traditional political discourse, but First Amendment rights generally are not contingent upon the quality of information. Free expression has traditionally been understood as allowing citizens to navigate the information environment without the government picking winners and losers.

Second, the government’s justification for why the ban was needed was comically uninformed. It was, at best, a ruse. And the Supreme Court fell for it.

The government argued during oral arguments before the Supreme Court that the Chinese government was collecting vast amounts of data about Americans and could weaponize that information to either make Americans argue with each other or as a tool to blackmail or harass citizens.

Solicitor General Elizabeth Prelogar, arguing for the government, explained, “One of the pages out of the playbook here is for a foreign adversary to simply try to get Americans arguing with one another to create chaos and distraction in order to weaken the United States as a general matter.”

Justices astutely noted during oral arguments that all social media outlets, as well as a variety of news organizations, cause Americans to argue with each other—no foreign intervention required. Justices seemed less informed about the data-gathering claims the government was making.

There is no doubt TikTok has an incredibly powerful algorithm that invasively collects data about every user, but the problem of data collection is inherent in nearly every social media app and technology firm. The government singled out TikTok because of its foreign ownership, but user data from U.S.-held firms could be purchased by anyone in the world. Politico, for example, reported last year that data brokers sell access to voters who might want to overthrow the U.S. government.

The point is, TikTok’s foreign ownership doesn’t matter when Americans’ data is being bought and sold in a generally unregulated data-broker market. The Chinese government can simply purchase the data, relatively inexpensively, elsewhere. What the Supreme Court, as well as the other two branches of our government, could have said was that we need comprehensive privacy reform in this country. But they didn’t.

As a result, the government now has the power to ban foreign-owned communicators without violating the First Amendment. To put that in perspective, consider Al Jazeera, the Qatar-based news organization that operates in the U.S. Are they the next to be banned because their reports might represent unpopular views? That would, before the TikTok decision, be a content-based restriction, something the Supreme Court has long rejected as a reason to ban unpopular speech in this country. But they aren’t based in the U.S. There’s a loophole in the First Amendment now.

Other noteworthy communicators that have foreign ownership: Politico, which is German-owned, and the London-based BBC. Could a scathing report by one of these organizations and strained diplomatic ties lead the government to remove their reports from the marketplace of ideas?

The Court’s decision was misguided and represents the first time the Roberts Court has limited, rather than expanded, First Amendment protections since 2005. The Roberts Court has upheld citizens’ rights to lie about earning military honors and struck down a law that criminalized animal cruelty because both laws limited First Amendment safeguards. The Roberts Court also upheld Westboro Baptist Church’s hateful protests at military funerals. But earlier this month they lost the plot. They limited the periphery of the First Amendment, excluding a communicator from protections based on unsupported national security concerns.

TikTok suspended its services briefly on Jan. 18, but resumed availability, based on a promise from President Trump, the next day. The social media tool’s future is uncertain. Thanks to the Supreme Court’s decision about the government’s ban, the boundaries of First Amendment safeguards for communicators are uncertain as well. 

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Jared Schroeder is an associate professor at the University of Missouri School of Journalism and a member of the Overby Center panel of experts. He is the author of “The Structure of Ideas: Mapping a New Theory of Freedom of Expression in the AI Era.”