A federal appeals court decision regarding the continued availability of a social media site seems to have little to do with local newspapers in South Carolina. However, the ruling could have important implications for the First Amendment and be a harbinger of more government actions limiting freedom of speech.
The Federal Circuit Court for the District of Columbia’s decision, issued on Dec. 6, upheld a statute passed by Congress and signed by President Biden in April. The law requires TikTok’s parent company, Bytedance, which is based in China, to either sell the social media site to an American company or stop making it available to users in the U.S. by Jan. 19, 2025. The law would also bar online app stores from allowing American users to download or update the app.
The rationale for the ban is that, as a Chinese company, ByteDance would be required to comply with the Chinese government’s orders to divulge information on its estimated 170 million American users, undermining their privacy and endangering national security.
The president can extend the deadline for up to 90 days. During his previous term, President Trump attempted to ban TikTok through an executive order that the court held unconstitutional. More recently, he has expressed opposition to banning the app.
In TikTok’s challenge of the ban, a three-judge panel of the Court held that the law as it now stands — with the January 19th deadline — does not violate the First Amendment. All three judges agreed that the law restricted speech but disagreed on the applicable legal standard. However, in the end, all three judges held that the law does not violate the First Amendment. The two judges in the majority stated, “The Government acted solely to protect [freedom of speech] from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States. For these reasons, [TikTok’s] petitions are denied.”
TikTok asked the appeals court to stay its ruling while it appeals the decision to the U.S. Supreme Court. The Supreme Court can decide whether to hear the appeal.
The remarkable thing is that the Appellate Court upheld the speech restriction as not violating the First Amendment. After all, it has been a long-standing legal principle in the U.S., as expressed by the Supreme Court in a 1963 case, that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” As a result, there are only very few cases in which restraints on publication were ultimately left in place.
One of these was a Federal District Court order in 1979 barring The Progressive magazine from publishing an article on how the hydrogen bomb works, with the court agreeing with the government’s argument that publishing would endanger national security. “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all,” the judge wrote.
However, it turned out that the information was already available in numerous public sources, and the publication of similar material by other outlets led the government to drop the case while the order was being appealed. The article was then published.
The other instance, more obscure, is when a Federal Court barred CNN from airing jailhouse phone conversations between deposed Panamanian dictator Manuel Noriega and his lawyers. Both the 11th Circuit Court of Appeals and the U.S. Supreme Court declined to hear CNN’s appeal. Thus, the court order barring publication held. CNN aired excerpts from the tapes anyway and ended up paying a fine for contempt.
There was a similar case in South Carolina, in which the South Carolina Supreme Court in 1998 upheld an order barring the state from publishing excerpts of recorded phone calls between a murder suspect and his lawyer. The U.S. Supreme Court declined to hear this case as well.
But much more common are cases where an appellate court reverses even when lower courts issue an order barring publication. The most famous example of this was in 1971, when the 6-3 U.S. Supreme Court majority ruled that alleged national security concerns did not justify barring The New York Times, The Washington Post and other newspapers from publishing material from the Pentagon Papers, a classified history of American involvement in the leadup and early years of the Vietnam War. While the justices in the majority differed on their rationales for the ruling, Justice William Brennan wrote that the government’s claims of potential harm were too vague. “[T]he First Amendment,” he wrote, “tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.”
In the TikTok case, the Appeals Court accepted the government’s arguments. If it takes the case, we’ll see if the U.S. Supreme Court agrees. Whatever the result, the TikTok case will likely be an important precedent regarding the government’s ability to restrict publication for national security and perhaps other reasons as well.
Eric P. Robinson is the Reid H. Montgomery Chair in Freedom of Information at the University of South Carolina’s School of Journalism and Mass Communications, where he teaches media and internet law as an associate professor at the USC School of Journalism and Mass Communication and an academic affiliate of USC's Joseph F. Rice School of Law. He is “of counsel” at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for over 30 years and is admitted to legal practice in New York and New Jersey before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.
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