TikTok is under fire as Australia and the United States crack down over privacy concerns.
In a unanimous judgment handed down on 17 January, the US Supreme Court upheld Congress’ decision to ban TikTok, rejecting the argument that it was incompatible with the First Amendment.
The Protecting Americans from Foreign Adversary Control Applications Act was passed in April 2024 with bipartisan support, with the House of Representatives passing it 352-65 and the Senate voting 79-18 in favour of it. Only 18 Representatives and 3 Senators were absent or abstained.
The press often exaggerates the political allegiances of the US Supreme Court judges, and this case was another example of non-partisanship on the court.
8 judges formed the majority judgment. Justice Sotomayor issued an opinion disagreeing on one minor issue but, for all intents and purposes, was part of the majority. Only Justice Gorsuch wrote a separate judgment, and he agreed with the verdict.
The Supreme Court rejected the First Amendment argument by referring to national security concerns, as an important and legitimate interest of the government. A law limiting the First Amendment would be allowed if:
“It advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.”
In his concurring judgment, Justice Gorsuch applied a standard slightly more favourable to the government, concluding that “speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.”
Justice Sotomayor’s sole disagreement was arguing that the First Amendment was also burdened because it denied content creators’ “‘right to associate’ with their preferred publisher ‘for the purpose of speaking.’”
The Act explicitly singled out TikTok. But it would apply to other companies whose apps had more than 1 million monthly users who can “generate, share and view content” are controlled by a ‘foreign adversary,” and were “determined by the President to present a significant threat to the national security of the United States.”
The special circumstances of TikTok’s position in America and China meant that the court was willing to allow it to receive a differential treatment.
The Supreme Court largely stayed away from the issue of TikTok’s algorithm, finding no sufficient defence but otherwise refusing to comment on it. As Justice Gorsuch said, “one man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’”
Chinese law allows its government to force companies to comply with its demands, including seizing all stored personal data. Although TikTok and its supporters argued that it was ‘unlikely,’ the court held that it was still possible, and had faith in the predictions of legislators, especially given the bipartisan support.
There are a few phrases from the judgment that long-time readers of this series will know immediately: burden, important government interest, proportionality, most appropriate, and necessary.
TikTok v. Garland has effectively used the same test as the McCloy v NSW (2015) test for the implied freedom of political communication, albeit with a much greater emphasis on free speech.
The McCloy test for the implied freedom requires that there is a burden on the implied freedom, that there is a legitimate government interest, and that the burden is proportionate. Proportionality requires that it is necessary/appropriate; specifically, that there is no alternative that imposes a lesser burden while achieving the same result.
The other two proportionality elements are implied. The reference to national security vs free speech is one of balance, and the content-neutral component makes it suitably connected.
But the key decider is the question of constitutional entrenchment.
An implied freedom argument wouldn’t succeed against Australia’s social media ban for under-16s, the Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth), because the implied freedom is about an equal opportunity to engage in political discourse in a democratic society. As children cannot vote, the implied freedom wouldn’t be sufficient.
However, an explicit constitutional First Amendment would be sufficient to overturn the social media ban.
That being said, if the US Supreme Court is willing to uphold the TikTok ban, then the High Court would also uphold it.
One key difference between the US and Australia is that the majority recognised that courts and legislature should be careful when regulating technology, especially regarding expression/speech issues, because technology always outpaces the law.
This is not something that the Commonwealth government considered when designing the social media ban. The government did not properly consider or address the impact that VPNs would have, given that they didn’t even properly understand how they work.
On the other hand, the US Supreme Court relied heavily on bipartisan support for the legislation in Congress, with few dissenters and agreement on the key objectives.
If Congress reflected the Australian Parliament, with a strong crossbench and minor parties, then maybe the US Supreme Court would have shot it down. Their faith in Congress’ predictions wouldn’t be so great if one-third of the Senate voted against the law.
Combining a lack of certainty in Congress’ predictions and objectives with the cautiousness that should be exercised when passing legislation that deals with technology would likely be a big blow to the likelihood of the US Supreme Court upholding the Act.
Finally, Justice Gorsuch echoed the remarks made by many Australian politicians who complained that public submissions for the social media ban were only open for 24 hours:
“We have had a fortnight to resolve, finally and on the merits, a major First Amendment dispute affecting more than 170 million Americans. … Given those conditions, I can sketch out only a few, and admittedly tentative, observations.”
All just phoney baloney spin Bottom line ,they wang to buy it, they want it cheap as possible , and they want to protect their images imo .