(decided January 17, 2025)
In this case, the Court ruled that a federal statute requiring the divestiture of TikTok, Inc., from its parent corporation, Bytedance, Ltd., before TikTok could continue operating its unique, and extremely popular social media platform in the United States, did not violate the First Amendment to the United States Constitution. The statute prohibits internet service providers from providing services, in the United States, to assist in the operation of a “foreign adversary controlled application,” 15 U.S.C. § 9901. The statute then goes on then goes on to explicitly designate TikTok and ByteDance as operators of a “foreign adversary controlled application.” Public Law 118-50, 138 Statutes 955 § 2(g)(3). The companies’ social media platform does apparently operate under the control of the Communist Chinese government. With that in mind, the Court said the federal government’s interest in national security justified the “burden” the statute imposed on TikTok’s Free Speech rights. (The enforcement of the divestiture requirement within the time limit set by the statute would apparently effectively put TikTok out-of-business). The statute’s justification, the Court ruled, was sufficient for it to avoid violating the First Amendment. The Court’s ruling was unanimous.
COMMENT: I agree with the Court’s decision, however my rationale for agreement is much simpler, and truer to the United States Constitution, than the Court’s. The statute does not “abridge [anyone’s] freedom of speech.” See U.S. Const., Amendment 1. In other words, the statute does not impair anyone’s right to peacefully criticize (or to peacefully defend) the government, and it does not impair anyone’s right to publicly seek a peaceful change (or the peaceful maintenance) of the government. See U.S. Const., generally, and esp. Amendment I.
I do see a Constitutional problem with the statute’s explicit selection of TikTok as the operator of a “foreign adversary controlled application.” Article III of the Constitution “vest[s]” the “judicial Power” of the federal government in federal courts, not the Congress. The power to apply law to individuals, even private corporations like TikToc, seems to me to be a “judicial Power.”
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