So keeping this somewhat generic as it’s obviously triggered by the TikTok ban, but don’t want it to be discussion of TokTok and whether it deserves a ban…
It’s pretty clear that publications such as newspapers and books are highly protected from government action under the 1st amendment in the US. This is pretty much absolute, even really hideous ones that inspire violence (e.g. Daily Stormer, Turner Diaries), or give practical advice as to how to commit terrorism (e.g. Anarchist Cookbook), or are clearly sponsored by autocratic enemy states(e.g. various communist publications in the US during the cold war with Soviet funding, even if covert funding itself is not protected the publications that result are.).
So what’s the legal justification that means that protection does not extend to apps? To me it seems pretty much equivalent . AFAIK the protection given websites is the same as for physical media (all those examples listed above of abhorrent physical publications are available online as websites, even if hosting companies and search engines might do their best to get rid of them, the government cannot). Why not apps?
If tiktok were to shutdown their app in the US but keep the website (which has largely the same functionality as the app) could that be shutdown by the government? Or would it be protected?
AIUI Tiktok is essentially owned by the Chinese government. Despite all the trade we do with them, we are quietly hostile to each other. All the information about users gathered by Tiktok thus winds up in the hands of a hostile government.
The First Ammendment and free speech have nothing to do with it.
I’m not a law-talkin’ guy, but I don’t think the app is speaking. In fact, I don’t think those kinds of apps want to be responsible for content uploaded by their users. I think it’s the users who are doing the speaking and the app is just the medium (at least in this case).
So, the users may have a free speech claim (although there are so many other outlets), but I don’t see how the app does.
To amplify and clarify some of the information from @DocCathode - it’s not that Tiktok is owned by the Chinese government, but that since they’re a Chinese company, they are required to comply with their government’s requests for information. Tiktok claims that will never happen, and pretty much everyone else doubts that strongly.
For the record though, Tiktok was making a claim of 1st Amendment protection, but the SCOTUS felt that it wasn’t an issue with censorship, but about protecting Americans from illicit data gathering and manipulation by an unfriendly government.
Per the OP, not debating the merits of Tiktok of course, but again, the issue isn’t the App itself precisely, it’s about the ownership of that App and the associated information by a company which is ultimately responsible to said unfriendly government.
IE - they sell Tiktok, no problem, and content under it likely would have 1st Amendment protections subject to all the usual constraints.
Did SCOTUS address any first amendment claims at all? Or, did they just bypass them completely and say this is a national security issue with a company owned by a hostile government?
As opposed to good old-fashioned American social media, where all the information they gather winds up safely in the hands of advertisers, red state moral crusaders, and Trump-adjacent billionaires.
Similarly for the Socialist Worker newspaper, and various other publications during the cold war that were bank rolled by the KGB, but they were still protected speech.
I think those are curated by the outlets – the publisher for the poems or the newspaper itself for the letters. They don’t print every letter, and they definitely wouldn’t print some expletive-filled tirade, or nude pictures, or Nazi imagery or whatever.
ETA: I’m not sure I’m answering the question you’re asking. The government can’t stop from or force the newspaper to print letters to the editor (leaving aside obscenity laws, etc.). Is that your question?
1st Amendment briefly acknowledged, but yes, considered a valid national security risk.
In its opinion, the Supreme Court acknowledged that for 170 million Americans TikTok offers “a distinctive and expansive outlet for expression, means of engagement, and source of community.”
But the court said, Congress was focused on national security concerns and that, the court said, was a deciding factor in how it weighed the case.
“Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary,” the court wrote.
Definitely agreed. Is there some point I failed to address? My point is that the newspapers definitely do curate their materials in a way that Tik Tok and most other apps don’t.
I might argue that this bit is central to the First Amendment part of the decision:
It is not clear that the Act itself directly regulates protected expressive activity, or conduct with an expressive component. Indeed, the Act does not regulate the creator petitioners at all. And it directly regulates ByteDance Ltd. and TikTok Inc. only through the divestiture requirement. See §2(c)(1). Petitioners, for their part, have not identified any case in which this Court has treated a regulation of corporate control as a direct regulation of expressive activity or semi-expressive conduct. See Tr. of Oral Arg. 37–40. We hesitate to break that new ground in this unique case.
ETA: a bit more about the individual petitioners in this case:
Thanks to all about the 1st Am stuff! @griffin1977, I don’t know enough about anything here to really respond to any further detailed questions, so I’ll probably bow out.
If I buy a copy of the Socialist Worker at a newsstand and pay cash, the only info I give to the newsstand is that I had enough filthy capitalist lucre, likely wrung from the oppressed workers by an unfair system, to buy a newspaper.
That’s quite different from an app that tracks my every mouse path and sends it home to Big Brother.
This. TikTok is allowed to say whatever they want. They are not allowed to associate with anyone they want, and neither is anyone else. The constitution does not protect your freedom to associate with the Chinese government.
And indeed, if TikTok stops associating with the government of China, the ban is lifted. They can keep using their freedom of speech.
Although the First Amendment does not explicitly mention freedom of association, the Supreme Court ruled, in NAACP v. Alabama (1958),[367][368] that this freedom was protected by the amendment and that privacy of membership was an essential part of this freedom.[369] In Roberts v. United States Jaycees (1984), the Court stated that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends”.[370] In Roberts the Court held that associations may not exclude people for reasons unrelated to the group’s expression, such as gender.[371]
Your quote is talking about association between individuals, or memberships in groups.
Are you saying that freedom of association extends to foreign powers? Specifically to powers defined by the Code of Federal Regulations as “adversaries”?
Does this “freedom of association” apply to US designated terrorist organizations too?