‘Who are we to judge,’ ask … judges, upholding TikTok ban

When the bill to ban TikTok first was passed, we warned that its proponents had forgotten the lessons of the Pentagon Papers case, which cautioned against letting the government invoke “national security” as magic words that make the First Amendment disappear.

The appellate court that upheld the law last week proved our point.

The U.S. Court of Appeals for the District of Columbia Circuit failed to subject the ban to any meaningful scrutiny, deferring to the government’s position that TikTok damages national security. By refusing to “second guess” the government — or even question it at all — the court weakened the First Amendment and handed authorities expansive new powers over speech, including journalism.

Judges refuse to judge

For the TikTok ban, the court says it applied the highest level of constitutional scrutiny, which requires it to determine whether the law serves a compelling government purpose and is narrowly tailored. If this is the highest level of scrutiny, we’d hate to see what the lower ones look like.

When it comes to the First Amendment, a judge’s entire job is to scrutinize — and, yes, second-guess — the government’s justifications for banning speech. That’s because the government will often offer high-minded reasons for infringing on free speech like “national security concerns” when its real interest is in squelching speech it disagrees with or finds embarrassing.

The judges didn’t even need to look beneath the surface to see that happening in the TikTok case. The government admitted that the “national security” harm it fears comes not from bombs but ideas. And while the appellate court talked about covert Chinese manipulation of content on TikTok, it’s clear that what really got the bill over the hump was U.S. lawmakers’ fear of TikTok’s pro-Palestinian content, no matter whether it originates in Beijing or Baltimore.

But Americans are constitutionally entitled to read criticism of foreign wars that they’re paying for, no matter what lawmakers think of it. They’re also allowed to consume foreign propaganda.

The justices in the Pentagon Papers case — in which the court rejected the government’s attempt to bar The New York Times and The Washington Post from publishing a classified history of the Vietnam War — rightly took the exact opposite approach. Several justices were outwardly, and rightfully, skeptical of the government’s national security claims.

Justice Hugo Black, for instance, rejected the national security justification for a prior restraint on the newspapers, explaining, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

And Justice William J. Brennan Jr. summed up the government’s claims “that publication of the material sought to be enjoined ‘could,’ or ‘might,’ or ‘may’ prejudice the national interest in various ways” — and found them wholly insufficient to overcome the First Amendment.

Justice William O. Douglas wrote that the case exemplified “the widespread practice of governmental suppression of embarrassing information.”

Those justices were right. Even the government lawyer who argued the case before the Supreme Court later admitted that “he has ‘never seen any trace of a threat to national security’ since the papers became public.”

And we don’t need to look back to the ‘70s for examples of the government overstating national security risks. Successive administrations undermined the United States’ global standing on press freedom by prosecuting WikiLeaks founder Julian Assange, supposedly because of the harm his publications caused.

But then at Assange’s plea deal hearing in June, the judge explained that, based on the government’s own representation that Assange’s “crimes” had no “personal victim,” it was clear that “the dissemination of this information did not result in any known physical injury.”

Erik Wemple’s Washington Post column following the sentencing included a laundry list of recent examples of hyperbolic forecasts of hypothetical national security harms that never panned out. But Wemple couldn’t capture all of them, because they keep happening.

We’re still waiting for the government to substantiate its claims about the harms of last year’s so-called “Discord leak.” And at a recent hearing about a leak last October of Israeli plans to attack Iran, the government argued that Israel delaying its attack as a result of the leak somehow harmed America.

Hypothetical harms aren’t enough

Appellate courts are supposed to require proof of actual harm — not unrealized risks — before even entertaining the thought of censorship. But the judges who decided the TikTok case instead relied on hypothetical concerns of the type decried by Justice Brennan to justify the law.

No matter that the court acknowledged our government “lacks specific intelligence that shows [China] has in the past or is now coercing TikTok into manipulating content in the United States.” For this court, it was enough that the government “invokes the risk” that the PRC “might” manipulate content on TikTok.

The court also cited the vast amounts of data that TikTok collects from American users, but neither it nor the government ever explained how that data collection harms national security. As others have noted, it’s not exactly clear how China “can gain a national security advantage from knowing what Americans upload and watch on TikTok.” And anyway, there are noncensorial solutions to that problem.

A true “strict scrutiny” analysis would consider that, due to loopholes in U.S. law long predating the TikTok ban, China can easily buy the exact same information without TikTok’s involvement. Congress refuses to enact a privacy law to actually limit TikTok’s (or other platform’s) potential for surveillance or take other more serious measures to stop Chinese interference.

‘National security’ fears dreamed up against news outlets?

Unfortunately, if the appellate court’s opinion stands, it’s unlikely to be a one-off. Its analysis has concerning implications for both foreign and domestic news outlets and journalists.

Congress intended to target TikTok when it passed the ban. But, likely recognizing that a bill only targeting TikTok would be challenged as an unconstitutional “bill of attainder,” it granted future administrations the power to similarly censor other platforms from countries the government deems adversarial based on similarly shoddy national security claims.

That could include online news outlets based abroad, as long as they offer some kind of interactivity (for example, user comments). Ask The Associated Press — targeted under an Israeli law purportedly intended for Al Jazeera — if that slippery slope is far-fetched.

The court’s extreme deference to the government’s national security concerns also spells trouble for freedom of the press more broadly. For years, the Supreme Court has been shying away from questioning the government’s national security claims, despite the Pentagon Papers case. Will the current court stand up to a future president who claims he needs to ban a news outlet or throw a journalist in jail for the sake of national security? It’s worryingly uncertain.

President-elect Trump has said he’ll stop the TikTok ban, despite previously supporting it. It’s unclear how he can, though his administration could decline to defend the law before the Supreme Court. Regardless, the Supreme Court needs to take the next available opportunity to recommit to the skepticism judges are supposed to apply when the government trots out flimsy national security claims.