At Law & Liberty, Robert Natelson: TikTok and the First Amendment. From the introduction:
The ultimate fate of TikTok in America remains unclear. After a brief blackout, the application returned live as discussions between TikTok and the new presidential administration continue. Officials in all three branches of the US government have weighed in, but the ultimate resolution is, of course, unknown.
In its January 17 decision in TikTok v. Garland, the Supreme Court unanimously upheld the “Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACA) against TikTok. TikTok’s parent company, ByteDance, is located in Communist China. PAFACA requires the parent company to either find a non-Chinese buyer for TikTok or terminate operations in the United States.
TikTok, of course, is a highly popular video-sharing Internet application. As detailed below, it also is a massive data-collection agency. Under Chinese law, its parent is obligated to share all collected data with the Communist government upon demand.
The court’s procedure in this Internet-related case—like its procedure in most electronic-medium cases—was wrong. Specifically, it asked the wrong questions, relied on highly subjective inquiries, and led the court into needless difficulty.
The First Amendment, ratified in 1791, protects six specific freedoms. By the time it was adopted, the broad outlines of each had been drawn by British and American statutes, judicial decisions, and custom—although there were disputes about some of the details.
Unfortunately, much of the Supreme Court’s First Amendment jurisprudence since then has been entirely disconnected from the intended meaning of the amendment. Today, the court relies on categories and balancing tests pulled out of thin air by the “progressive” majorities who dominated the bench during much of the twentieth century.
One of the most serious deviations from the actual meaning of the First Amendment is treating electronic-medium controversies as matters of free speech rather than what they are: cases involving freedom of the press. …
Posted at 6:17 AM