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.
The Murthy case is partly about how much and in what ways the government can compromise civil liberties during a public-health emergency. Pandemic lockdown orders, mask requirements, and vaccine mandates were all impingements on our civil liberties. Private businesses were closed, and interstate travel was shut down in some places—even some public beaches were temporarily off limits. However you might feel about the particulars of Murthy, and about whether the communication between the Biden Administration and social-media companies constituted government coercion, there is no doubt that the government reached out with specific suggestions on what sorts of content should or should not be restricted. In pre-COVID times, such an impingement would have been rightfully condemned by legal scholars, by politicians on both sides of the aisle, and by the press, and would have been ruled unconstitutional in nearly every court in the land. But, given the seriousness of the pandemic—and, I imagine, what has now been an almost decade-long panic over disinformation—all those institutions now seem much less doctrinaire about the government’s need to stay out of people’s speech, especially when it’s online. We might understand why a police officer should not be able to haul away a street protester for saying something unpopular, but we are much less clear about whether the government should be able to gently prompt a social-media company to shadow-ban a Twitter account.
What is even less clear is whether Americans really care all that much about the First Amendment, especially when it comes to the Internet and online expression. Many polls and studies try to track the public mood on freedom of speech, but, when taken in aggregate, they don’t paint a particularly coherent picture of anything. My own sense, after following the issue closely for years and writing about it in various forums, is that the public still cares about the First Amendment when it comes to in-person speech. Many people don’t like it when speakers are shouted down on college campuses or when peaceful street demonstrators are jailed or battered by law enforcement. But many of those same people have not quite adjusted to the new digital reality, in which the majority of speech cases take place online.
All of these factors shape the contours of the compromise laid out at the start of this column, and the question that I asked there becomes something like this: In a time when norms around freedom of speech on the Internet are still being litigated in the courts, and when much of the country seems more amenable to a less free-speechy outcome, owing to the other compromises we have made—especially during the pandemic—should we just close our eyes and violate the First Amendment a little bit more if it means that our children can be free of the scourge of social media and all the societal ills that accompany it?
I imagine a lot of people would still shrug and say yes. And I don’t really blame them, especially when there’s an argument to be made that the most imminent threat to free expression comes not from the government but, rather, from overly powerful tech companies that can adjust a few filters on their algorithms and effectively silence entire populations from being able to take part in the public square. We free-speech advocates are in a bad way these days. Conservatives evoke the First Amendment in increasingly cynical ways while also passing legislation that shuts down the right to protest in the streets or attempts to kick minors and people without government I.D. off of social-media sites. Many establishment liberals, on the other hand, have overwhelmingly come to the conclusion expressed by Justice Ketanji Brown Jackson on Monday during Court hearings for Murthy. “In certain situations,” Jackson said, “the government can actually require that speech be suppressed if there’s a compelling interest.” What’s more, I’m not sure that most free-speech advocates believe that social media is a net positive for society, which makes it less appealing to defend the rights of these companies to do basically whatever they want without government interference. I, for one, will do everything in my power to keep my two young children away from a phone for as long as possible.
But before I give up and start advocating for the government to smash all the apps, I think it’s worth asking if we really believe that we can control or successfully moderate these online spaces. Do we believe that we can stop disinformation, or that, when the next pandemic rolls through, we can stomp out every little anti-vaccine fire that pops up on social media? Do we actually think that we can keep our kids fully off of social media, or that what replaces TikTok or Snapchat or Instagram will somehow be better than what we have today? Is it worth compromising foundational American civil liberties and the court’s precedent for what might amount to a pipe dream? It’s better, I think, to preserve the foundational spirit of the First Amendment, and to let the Internet run wild, and grow as big and stupid as it can be. That way, there’s even more reason to ignore it. ♦
