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Last week, the Court of Appeals for the District of Columbia Circuit upheld a federal law that threatens to shut down TikTok in the United States. The court’s most consequential conclusion: The First Amendment permits the government to protect Americans from covert foreign manipulation by restricting their access to foreign-controlled media — even when that means Americans’ speech is restricted, too.
The ruling is bad news for TikTok, its China-based parent, ByteDance, and its approximately 170 million American users. It also seriously weakens the First Amendment, and by extension our democracy, at an exceptionally perilous time.
Governments around the world are using the threat of foreign interference to justify the closure and harassment of media organizations and advocacy groups, and to impose new limitations on citizens’ access to information from abroad. Our next president has made clear he will exploit any legal authority he can to suppress what he deems to be “fake news.”
In this political landscape, the court’s opinion is an invitation to abuse. TikTok has said it will ask the Supreme Court to intervene in the case. It should.
The appellate court’s reasoning deviates from ordinary First Amendment principles in a number of ways. To begin, the judges gave near-categorical deference to the government’s claims about the risks associated with TikTok.
Of course, courts often take the government’s assertions at face value in cases implicating national security. Testament to this are decisions like Korematsu v. United States, in which the court upheld the internment of Americans of Japanese descent during World War II, and Trump v. Hawaii, in which the court upheld a law that banned travelers from seven Muslim-majority countries.
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