Freedom of speech and national security are often in conflict. During the Civil War, Abraham Lincoln banned newspapers from publishing pro-Confederate material. During the recent wars, the federal government suppressed criticism. After the 9/11 attacks, Congress made it a crime to even give civil rights advice to fringe groups.
In each case, government officials said they needed to restrict speech to protect the American people. And in each case, free speech advocates argued that the government had gone too far and undermined the country’s values.
It’s the same with recent clashes between speech and security – involving TikTok, a social media platform owned by a Chinese company.
In response to concerns that China could use the platform to spy on Americans and spread propaganda, Congress last year passed legislation requiring TikTok’s parent company to sell it to a non-Chinese owner. TikTok and its parent company, ByteDance, then sued to block the law. This morning, the Supreme Court will hear arguments in this case.
In today’s newsletter, I will lay out the best arguments for each side. Whatever your views, I encourage you to realize that there is no perfect solution, just as there was no perfect solution to previous conflicts between national security and freedom of speech. Putting one first may mean compromising the other.
TikTok as a discourse
The argument for leaving TikTok alone starts with its popularity. About 170 million Americans, equal to half of the country’s population, use this app. They have fun, connect with friends, follow the news, go shopping and run businesses.
Critics of the law say that shutting down TikTok — as the government will do if ByteDance refuses to sell it — would be an unprecedented violation of American public speech: Never before has a government taken down a platform so widely used for communications and commerce.
Critics also say that Congress has failed to show that China is using TikTok to deceive the American people; the law is instead based on concerns that China might one day do so. The effect of the law is to “substitute our government’s guaranteed exploitation for China’s feared exploitation,” Jameel Jaffer and Genevieve Lakier, two First Amendment experts, wrote in Times Opinion.
Donald Trump now seems to be on TikTok’s side, too. Briefly last month, he and his lawyers argued that the Supreme Court should allow him to settle the issue after he becomes president. (The deadline for ByteDance to sell TikTok is Jan. 19.) Trump initially supported a forced sale but changed his position last year, apparently after talking to a Republican Party donor who is a TikTok investor.
TikTok as a threat
The argument in favor of the law is about the Chinese government’s recent actions and future ambitions. China regards corporations as extensions of the state. If managers violate the instructions, they can be fired or imprisoned. China has also made extensive efforts to spy on the US and influence American politics.
Already, videos on some topics, including Taiwan and Tibet, can be difficult to find on TikTok, an independent study has found. The same goes for pro-Ukraine and pro-Israel videos. (China has become increasingly close to Russia and Iran.) These patterns suggest that TikTok is suppressing the interests of the Chinese Communist Party.
Perhaps the simplest legal argument is that the US would not allow the Soviet Union to own NBC, Life magazine or a company that collects the personal information of Americans. “Restrictions on foreign ownership have been part of federal communications policy for more than a century,” legal scholar Zephyr Teachout wrote in the Atlantic.
Supporters say that history helps explain why Congress passed the law so overwhelmingly, with bipartisan support, and why liberal and conservative appeals court justices voted to uphold the law last month.
Today’s oral arguments will give a clear idea of ​​how the justices might rule. Our partner Adam Liptak, who is a lawyer by training and who covers the Supreme Court, says that recent history suggests that TikTok may have a tough case to make. “The court would be reluctant to second-guess congressional judgments about national security even in the context of a First Amendment challenge,” Adam said.
He cited a 2010 case involving another conflict between national security and freedom of speech. In that decision, the court upheld a provision of the Patriot Act of 2001 that prohibited even nonviolent aid to terrorist groups.
Today’s three justices (John Roberts, Samuel Alito and Clarence Thomas) were in the majority, and only one (Sonia Sotomayor) dissented. The fourth member of the current court (Elena Kagan) was attorney general in 2010 and defended the law during oral arguments.
But Adam added that the court could also use old precedents, from the Cold War and Vietnam eras, where the court rejected government arguments that threats to national security justified restrictions on speech.
Politics
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France has arrested the founder of a website used by other men who raped Gisèle Pelicot.
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State analysis links high fluoride exposure to low IQ in children. It’s drawn to countries that add more fluoride to their drinking water than the US.
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A man convicted of firing a gun at a Washington pizza restaurant in 2016, inspired by the “pizzagate” conspiracy theory, was shot and killed by police in North Carolina.
Ideas
Immigration policy requires three shifts: preventing illegal immigration, increasing legal immigration and a path to citizenship for those already living here, Planning board he writes.
Big cities can be great places to live. New York must show its greatness by reducing crime on the subway, Mara Gay he writes.
Here are the columns with David Brooks in character building and Michelle Goldberg to Representative Ro Khanna.
Espionage: A Chinese American scholar posing as a pro-democracy activist and working with dissidents in New York. Turns out he’s an informant.
Shop smart: Can you identify ultraprocessed foods? Take our grocery quiz.
Lives Lived: Anita Bryant was a singer and former beauty queen who had a strong career in the 1960s and ’70s. But his opposition to gay rights — he called homosexuality “an abomination” — almost ended his career. He died at the age of 84.
SPORTS
College football: Notre Dame beat Penn State in a thriller 27-24 to earn a spot in the national title game.
MLS: The league has apologized for publishing an article indicating that the wrong player had transferred to one of its clubs, Atlanta United.
ART AND IDEAS
Auction houses such as Suthu and Christies have been struggling due to the downturn in the market. So they’ve expanded beyond art and sell niche experiences and luxury goods, including treasures, classic cars, dinosaur fossils, designer handbags, jewelry, fine wines and game-worn NBA jerseys. Read about the switch here.
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