US Supreme Court Completely Right to Take Up the Tik Tok Banning Case

The New York Times just reported that the US Supreme Court has decided to hear TikTok's challenge to the law that would ban TikTok from the USA on January 19, 2025 unless its Chinese owners sold it to a non-Chinese company.   I've been very critical of our current Supreme Court for all kinds of important reasons, but I think it is doing the right thing to take up this case.  I applaud its decision to take up this case, and I further hope that it strikes down the law that would ban TikTok as blatantly unconstitutional -- because it is -- a clear violation of the First Amendment.

As everyone knows, including the bipartisan Congress that passed the law, and President Biden who signed it into law, earlier this year, the First Amendment to our Constitution says "Congress shall make no law abridging the freedom of speech or of the press." The only exception is speech or any communication that contributes to a criminal act.  So, to use an obvious example, you can't put an ad in a newspaper or on a social media site saying you're looking to hire a hitman as competent as the Jackal.  Now, I get that China is our adversary in the habit of spying on us in all kinds of ways, but I haven't seen any evidence or proof that such spying, which would be a crime, is actually happening via TikTok. Have you?

I've also heard, by people who should know better, that the First Amendment applies to the United States and its citizens, not its Chinese owners who are bringing the case to the Supreme Court.  That argument either accidentally or deliberately misses the crucial fact that it is Americans, people who are living in the United States, more than 160 million of us, whose First Amendment rights will be violated the moment we're no longer able to post videos on TikTok, talk to people on the site, etc.  How anyone could miss that point is beyond me.

Congress and the President have been muddled about the First Amendment and it how it applies to the Internet since Congress passed and Bill Clinton signed into law the Communications Decency Act in the 1990s.  It was left to the US Supreme Court to strike down that unconstitutional law, which made it a crime punishable not only by hefty fines but a few years in prison for anyone to post anything on the Internet that was "objectionable" and potentially viewable by minors.  I hope the current Supreme Court once again rises to the occasion, and lets the well-meaning but muddled members of both political parties that they need to take the First Amendment, and the rights it guarantees, which are fundamental to our democracy, a little more seriously.

Here is what I had to say about this impending ban, shortly after the law was enacted this past Spring

First Amendment and Public's Right to Know Could be Put to the Test: ByteDance rejects Microsoft Bid for TikTok

The news just broke that ByteDance just rejected Microsoft's offer to buy TikTok*.

This is big news, with profound First Amendment implications.  Trump has threatened to ban TikTok in the United States.  Were it owned by Microsoft, an American corporation, banning any of its media would be an obvious, ipso facto, violation of the First Amendment, and its provision that "Congress [i.e, the Federal government] shall make no law ... abridging the freedom of speech, or of the press".

But what about TikTok, now owned by the Chinese company ByteDance?   Some would argue that the First Amendment pertains only to American media.   I (and others) would argue otherwise.  The First Amendment is designed to protect the public's right to know -- Congress is prohibited from banning or restricting media because that seriously interferes with everyone's right to know what's going on.  How else can a democracy function?

I'm glad that ByteDance said no to Microsoft. I have nothing at all against Microsoft -- in fact, I defended Microsoft against our government's foolish threats to break up their alleged monopoly back in the 1990s -- but I'm glad that ByteDance's action will put Trump's blustering to a legal test.  If that happens, if he doesn't back down, it will ultimately be up to the U. S. Supreme Court to determine whether the First Amendment protects the public's right to have access to international media, which is becoming increasingly important in our interconnected world.

You never know for sure about any Supreme Court decision before it's rendered, but I'm always glad to see an issue like this, which gets at the First Amendment and its foundation of our democracy, put to the judicial test.

*PS: And news just came through that ByteDance decided to make Oracle, a U. S. firm, as its partner for Tikok.  Will that qualify for TikTok as being an American firm?