JPublic opinion that allows the government to suppress speech in the name of national security rarely stands the test of time. But time has been unusually unkind to the US Supreme Court’s decision, which upheld a law banning short-form video platform TikTok. The court issued its decision less than a year ago, but it is already clear that the deference the court gave to the government’s national security arguments was deeply misplaced. The main effect of the court’s decision is to give our own government enormous power over the policies of the speech platform used by millions of Americans every day – an outcome that is an affront to the First Amendment and a national security risk in itself.
Congress passed a TikTok ban in 2023, citing concerns that the Chinese government might be able to access information about American users of TikTok or secretly manipulate content on the platform in a way that could threaten US interests. The ban was designed to prevent Americans from using TikTok starting in January 2025, unless TikTok’s China-based corporate owner, ByteDance Inc., sold its U.S. subsidiary before then.
Many First Amendment lawyers and scholars – including both of us – expected the Court to be highly skeptical of the law. After all, TikTok is one of the most popular speech platforms in the country, and banning foreign media is a practice typically associated with the world’s most repressive regimes. What’s even more scandalous is that a long list of legislators candidly acknowledged that their support for the ban stemmed not only from general concerns about what users can see on the app, but also from a desire to suppress specific types of content – particularly videos showing the devastation caused by Israeli airstrikes in Gaza and other content sympathetic to Palestinians. For laws affecting speech, such motivations are usually fatal.
But the justices upheld the ban — unanimously — in a slim and credible opinion issued just a week after oral arguments. Apparently unimpressed by the legislators’ censorship-related motivations, the court held that the law could be justified on the basis of privacy concerns, and it accepted without seriously examining the government’s argument that the ban was necessary to protect users’ data.
Privacy and security experts told the court that banning TikTok would not actually meaningfully hinder China’s ability to collect data on Americans, and that if the government wanted to address legitimate privacy concerns online it could do so without dramatically curtailing Americans’ free speech rights. But the court said it is not the court’s job to review executive branch decisions regarding national security and foreign affairs.
The First Amendment doesn’t work that way. For one thing, courts should not turn a blind eye when the government says it wants to control what people can say or hear. A law motivated by a desire to suppress particular categories of content – to suppress “misinformation, disinformation and propaganda,” as the House committee report on the bill put it – should at least be subject to strict scrutiny.
And courts are not expected to let the government circumvent that review simply by declaring that national security requires censorship. It is the central text of the last hundred years of First Amendment doctrine.
During the first Red Scare, the courts allowed the government to use the Espionage Act to jail hundreds of activists for doing nothing more than protesting the war. The cases at that time are regarded as stains on the history of the First Amendment, and modern First Amendment theory developed as a reaction against these mistakes. Courts are thought to have learned that it is their job to protect the democratic process by casting doubt on alleged national security justifications for suppressing speech.
The events that followed the Supreme Court upholding the ban on TikTok have only underlined why the judges were wrong to ignore the government’s arguments. The court announced its decision on January 17 as the ban was to come into effect two days later. But even after the court reached its decision, Donald Trump issued an order saying he would suspend implementation of the law for 75 days.
Since then, he has extended the suspension four times without any legal basis – and he may extend it again. Meanwhile, TikTok remains freely available. Lawmakers who have been insisting that TikTok poses an immediate threat to US security could not be reached for comment. All of this makes a mockery of the government’s earlier claims that TikTok was an immediate national security risk — and the court shelved those claims.
What’s worse, the court’s decision now means TikTok It operates under the threat that it could be forced offline with a stroke of the President’s pen. Conservatives and liberals alike have expressed concern for years about government officials making threats to “jaw-bone” social media companies into changing their content-moderation policies, but no previous administration has enjoyed the power to take down a platform by invoking existing law.
Whether TikTok is already aligning its policies with Trump’s priorities – as many US universities, media companies and law firms are doing – is difficult to know. However, even if the platform is not compliant now, it may well be in the future, as Trump is brokering an agreement to transfer the platform to his ideological allies.
Obviously, the court cannot be blamed for all this. It could not have been predicted that President Trump would refuse to enforce the law. Still, we might have avoided this ending had the court not messed up to begin with. If the court had carefully scrutinized the government’s national security arguments, it would have seen that the TikTok ban, for all its novelty, is actually a familiar example of the government exploiting national security fears to intimidate the courts into giving it the power that the Constitution limits.
The Court would have understood that the ban itself created a serious national security risk – the kind of risk the modern First Amendment was intended to prevent – by giving the government far-reaching influence over online public discussion.
In the coming months, the Supreme Court will face other cases in which the government cites national security to justify the suppression of speech. The court’s analysis of those cases should be influenced by the TikTok case and its shameful, scandalous coda. We need the court to play its constitutionally appointed role – and not simply defer to political actors who use national security rhetoric in the service of censorship.
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