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Supreme Court bans TikTok

by | Jan 17, 2025 | Civil Law |

January 17, 2025 the US Supreme Court unanimously issued an order upholding a law enacted by Congress banning TikTok.  The Court did not decide whether the First Amendment applied to the law— rather the Court assumed it applied and analyzed the law under First Amendment precedent.  Justice Sotomeyer concurred with the result, stating the First Amendment definitely applied, but that the First Amendment did not bar the law.  Justice Gorsuch concurred discussing policy grounds of national security with some skepticism that the law would do what it claims to do.

 

The law stated that if TikTok was owned by a Chinese company then it would be banned. Congress found the extent of personal information shared with TikTok from people’s phones and computers would allow a foreign adversary government — China — to use that information to blackmail or otherwise influence or harm Americans.  The Supreme Court accepted as true what Congress found and used that basis to uphold the law.  Key to the decision was that the law did not choose to ban the site based on the content of the speech, but rather on the ownership of the site.
The Court stated the only issue in the case was that China was a foreign adversary and explicitly held that this case did not provide precedent for banning social media sites not owned by foreign adversaries.
However, the Court left open future challenges to social media sites not owned by foreign adversaries.  It did so because it did not hold that the First Amendment applies to social media sites.
There is no dispute that the First Amendment protects websites that have editorial control and express opinions.  The government cannot shut down a leftist or right-wing publication on line or on paper that is put out by editors that regulate content.  After all, that is simply a newspaper published electronically, and we know the Framers cared about protecting newspapers.
Social media sites that do not routinely pick and choose what individual bloggers post are different however from traditional newspapers.  Anonymous postings on Facebook, Twitter(X), Tumblr, Instagram and a myriad of other sites have become a typical way in which citizens share views and pictures and videos and interact with each other. However, there are no agreed upon “time, place and manner” restrictions governing speech on such sites.  Most such sites now remove content they believe to be illegal- such as child pornography.  Facebook had a more extensive regulatory regime limiting speech that it deemed inappropriate for a variety of reasons, but it has just removed those censors in the face of strong criticism.
Many people believe that social media constitutes more harm than good.  It facilitates bullying and conduct that historically was considered defamation.  It provides a vehicle for foreign governments to try to influence voters.  It is not impossible to imagine a future Congress banning US owned social media sites, or a prosecutor charging a social media site with crimes.
After today’s decision, we do not know for sure how a future Supreme Court would react.  For the short term, I believe a majority of the Court would find the First Amendment prevents banning US owned social media websites.  But the law is evolving as does the perception of the good versus harm of social media sites.