When considering the future of TikTok, the question, at least for many Americans, seems to be this: Would you give up a little bit of your freedom of speech if it meant that your family spent less time staring at small, glowing emotional-manipulation machines?
I imagine that most people would say yes. Last year, a study conducted by the University of Michigan’s C. S. Mott Children’s Hospital found that the top two concerns for parents when it came to their children’s health were “overuse of devices/screen time” and “social media.” After the House of Representatives passed a bill, last week, that would force ByteDance—the Chinese company that owns TikTok—to sell the platform and its algorithms to a non-adversarial buyer or pack up and leave more than a hundred and sixty million of its American users behind, a YouGov poll found robust support among older Americans for a simple government ban of the app.
Those findings reflect a palpable shift in public sentiment toward the social-media giants, especially when it comes to the effects that their addictive products have on children. The reasons are obvious enough, and can be explained without pointing to studies about skyrocketing anxiety, depression, and suicide rates among teen-agers. Nobody wants their kids to be addicted to their phones. We should resist a society in which every human interaction gets processed through an algorithm and broadcast out to a frequently nasty public.
In the past couple of years, that resistance has started to take some shape, although it’s still difficult to discern how earnest or how effective it will be. Recently, a judge allowed a lawsuit against Snap, Inc., to go forward. A group of parents whose children overdosed on drugs are suing the company for facilitating communication between their children and drug dealers, hoping to hold the company liable. If the parents win, it would significantly reduce the power of Section 230, the federal law that says that Internet-service providers are not responsible for the content that their users post online.
Although Congress’s TikTok legislation is based partly on fears about data collection, both that bill and the Snap case suggest that the budding resistance to social media will inevitably clash with civil liberties. Social media is now the public sphere. Yes, the major social-media apps are owned by private companies, but, when North Carolina tried to bar sex offenders from using Facebook and other social-media sites, the Supreme Court ruled, in Packingham v. North Carolina, that the government could not restrict people from using “what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Last year, as state legislatures across the country were drafting bills to place age restrictions on social-media platforms, I wrote that these laws, though understandable in spirit, were simply too unconstitutional to consider, especially given their unrealistic and clunky enforcement mechanisms, which would have gone well beyond just keeping kids off the platforms.
Setting aside the data-collection issue, the effort to bar TikTok is somehow even more unconstitutional. Another Supreme Court case is relevant here. In the sixties, a Socialist philosopher named Corliss Lamont was waiting for the delivery of the Peking Review, an explicitly Communist publication from China. At the time, the United States Postmaster General complied with a rule that dictated that any piece of mail from a foreign country that had been flagged as “Communist political propaganda” would be intercepted and set aside. The addressee would be mailed a card notifying them that the foreign Communist propaganda was waiting for them and would be destroyed if they didn’t send back a query card within twenty days affirming that they had indeed ordered the propaganda and would still like it to be delivered.
Lamont sued the Postmaster General, arguing that the stoppage of his mail and the requirement to put himself on a list violated both his First and Fifth Amendment rights. A year later, in 1965, the Supreme Court ruled that American citizens had a “right to receive” information, even if it was foreign Communist propaganda. Writing in the Times last year, Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, noted that the Lamont case, along with Packingham v. North Carolina, left “no question that government action whose effect would be to bar Americans from using a foreign communications platform would implicate the First Amendment.” If Americans have the constitutional right to receive explicit foreign propaganda through the mail without even having to deal with the inconvenience of filling out a reply card, presumably they also have the right to receive whatever propaganda gets smuggled in through TikTok’s endless reel of dancing teen-agers.
“The whole point of the First Amendment is to give ordinary citizens the power and the tools to decide for themselves what information to listen to and what ideas to find persuasive,” Jaffer told me. “That’s the foundational principle of the First Amendment and a foundational principle of any democracy—that the power to decide what information to access and listen to and how much weight to give it are left to the ordinary citizen and not to the government.”
This past Monday, the Supreme Court heard arguments in Murthy v. Missouri, a case that should determine whether the Biden Administration violated the First Amendment when it contacted social-media companies about alleged COVID-19 and 2020 election disinformation on their sites. The plaintiffs in the case, which include two states and a handful of social-media users, allege that the Administration actively coerced these companies to take down posts that went against what it, at the time, was billing as unassailable scientific fact. Last July, a lower court agreed with the plaintiffs, and issued an order limiting the communications between the White House, along with other government agencies, and social-media companies. The Administration succeeded in getting the injunction, which it’s still fighting, temporarily suspended so that it could argue the matter in front of the Supreme Court. Biden’s Administration has said a variety of things in its defense, some of which seem reasonable enough. It does seem a bit ridiculous for the courts to effectively say that an Administration cannot contact a social-media company when that same Administration regularly contacts news organizations, which, of course, have the freedom to ignore government requests.