Censorship or Common Sense?

by Eric P. Robinson, USC School of Journalism and Mass Communications

A federal appeals court decision regarding the continued availability of a social media site would seemingly have little to do with local newspapers in South Carolina. But the ruling could have important implications for the First Amendment, and could be a harbinger of more government actions limiting freedom of speech.

The court decision came on Dec. 6 from the federal Circuit Court for the District of Columbia, and 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 to stop making the site available to users in the U.S. by Jan. 19, 2025. (The law would bar online app stores from allowing American users to download or update the app.)

The stated rationale for the ban is that, as a Chinese company, ByteDance would be required to comply with orders from the Chinese government 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. While during his previous term President Trump attempted to ban TikTok by an executive order that was held unconstitutional by the courts, 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 Jan. 19 deadline—does not violate the First Amendment. All three judges agreed that the law was a restriction on speech, but disagreed on the applicable legal standard. But in the end, all three judges held that the law does not violate the First Amendment. As stated by the two judges in the majority, “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. That court can decide whether or not to hear the appeal.

But the remarkable thing is that the appeals 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.

But it turned out that the information was already available in numerous public sources, and 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 in which, even when lower courts issue order barring publication, an appellate court reverses. 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. We’ll likely see if the U.S. Supreme Court agrees, if it takes the case. But it’s important to note that whatever the end result, the TikTok case will likely be an important precedent regarding the government’s ability to restrict publication in the name of national security, and perhaps other reasons as well.