Con Law Center Amicus Briefs

Document Type

Court Filing

Publication Date

12-2024

Abstract

“Without freedom of thought, there can be no such thing as wisdom, and no such thing as public liberty, without freedom of speech.” Benjamin Franklin, Silence Dogwood, No. 8 (July 9, 1722). For this reason, the U.S. Constitution makes clear that the Government cannot abridge free speech based on its content or viewpoint absent compelling and narrowly tailored grounds. Indeed, the protection of all speech is foundational to American democracy. See United States v. Schwimmer, 279 U.S. 644, 654–55 (1929) (Holmes, J., dissenting) (“[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought”); Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting) (“[A]s against dangers peculiar to war, as against others, the principle of the right to free speech is always the same”). Three weeks ago, the United States Court of Appeals for the District of Columbia Circuit (the “lower court”) upheld the Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, div. H (the “Act”). The Act is an extraordinary use of government power, requiring ByteDance (TikTok’s owner) to divest TikTok or requiring a ban of TikTok wholesale. To put the lower court’s holding in context: millions of Americans use TikTok daily to express political, social, and economic views. It is a paradigmatic modern-day “public square.” See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). Both TikTok’s and its users’ speech will be eradicated under the Act’s mandate of divestiture or ban. The free speech consequences are thus serious and wide-ranging. This is a shocking holding in a country founded on the principle that all speech should be permitted and protected absent actual cause. It is particularly shocking given that the Act discriminates against TikTok, and TikTok alone, based on the content and viewpoint of its speech. Indeed, one of the Government’s rationales for the Act—to limit the People’s Republic of China’s (“PRC”) ability to manipulate content covertly on the TikTok platform—is expressly content and viewpoint-based. The lower court acknowledged as much, agreeing that the “risk that the PRC might shape the content that American users receive, interfere with our political discourse, and promote content based upon its alignment with the PRC’s interests” references the “content of TikTok’s speech.” Opinion (“Op.”) at 30. But it failed to mention that this also attempts to regulate based on the viewpoint—e.g., anti-Taiwanese independence messaging—of proPRC speech. See, e.g., id. at 30, 43. A review of the content and viewpoint purposes underlying the Act requires the application of strict scrutiny with the presumption that the Act is unconstitutional. The lower court did not do so. The lower court’s scrutiny was strict in theory, but lax in fact. It allowed the Act to stand based on the risk that TikTok could be used by the PRC to gather information and manipulate content. The Government provided no “specific intelligence” to substantiate its concerns that TikTok could be so used and the lower court did not cite any such evidence. Id. at 32, 47. There was also no evidence showing that these threats were particularly imminent or that any threats could not be better handled through less restrictive alternatives, such as a negotiated mitigation agreement. Rather, and despite the bare evidentiary record, the lower court deferred to the Government’s makeshift contentions, which provided post-hoc rationales and dismissed legislators’ own repeated justifications. Strict scrutiny plainly requires more than the speculation the Government has put forth. United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 819, 822 (2000) (requiring the Government to provide “hard evidence,” rather than “anecdote and supposition” of the problems it seeks to address). As the court with exclusive original jurisdiction over petitions challenging the Act, the lower court should have scrutinized the record to ensure the Act was justified. It did not. And the fact that the lower court did not consider the whole record casts doubt on its conclusion that the Act was the least restrictive means to achieve the Government’s goals, especially considering the alternatives proposed by TikTok—e.g., disclosure and the National Security Agreement. Amici respectfully urge this Court to reverse the lower court’s opening of a dangerous and unconstrained national security exception to the First Amendment, and avoid setting a dangerous precedent that will harm the speech of not only TikTok, but also millions of TikTok users.

Publication Title

U.S. Supreme Court

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