In TikTok v. Garland, the Supreme Court will determine whether TikTok—the social media platform used by an estimated 170 million Americans—can continue to operate in the United States under the ownership of a Chinese holding company. Jameel Jaffer of Columbia Law School and Zephyr Teachout of Fordham Law School join Jeffrey Rosen to debate whether the law that forces TikTok to be sold or banned violates the First Amendment.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Jameel Jaffer is the executive director of the Knight First Amendment Institute at Columbia University. Prior to joining the Knight Institute, he was deputy legal director at the American Civil Liberties Union and director of the ACLU’s Center for Democracy, where he oversaw the ACLU’s work relating to free speech, privacy, technology, national security, and international human rights. He authored a brief in support of the petitioners in Tiktok v. Garland.
Zephyr Teachout is a professor at law at Fordham Law School where she focuses on the intersection of corporate power and political power. Her most recent book, Break ’Em Up: Recovering Our Freedom From Big Ag, Big Tech, and Big Money (2020), makes a case for reimagining the relationship between democracy and antimonopoly law. Her prior book, Corruption in America (2014), argued that the American constitutional system has an embedded anti-corruption principle that has been discarded by the modern Court. Her public writings have appeared in The New York Times, Foreign Affairs, The New York Review of Books, The Washington Post, The Nation, and The New Republic. She authored a brief in support of the respondents in Tiktok v. Garland.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Jameel Jaffer, “Brief of the Knight First Amendment Institute at Columbia University, Free Press, and PEN American Center as Amici Curiae in Support of Petitioners,” TikTok v. Garland
- Jameel Jaffer, “The Supreme Court Must Intervene in the TikTok Case,” The New York Times (Dec. 10, 2024)
- Zephyr Teachout, “Brief of AMICI CURIAE Zephyr Teachout and Joel Thayer in Support of Respondent,” TikTok v. Garland
- United States Court of Appeals for the D.C. Circuit, Opinion of the Court, TikTok v. Garland
- Arcara v. Cloud Books, Inc. (1986)
- Reed v. Town of Gilbert (2015)
- Moody v. NetChoice (2024)
Excerpt from Interview: Zephyr Teachout argues that the law requiring TikTok's divestiture aligns with U.S. tradition of regulating foreign ownership to protect sovereignty and democracy.
Zephyr Teachout: Okay. But it's this law the Protect Americans From Foreign Adversary Controlled Applications, which then defines foreign adversary controlled applications to include TikTok and any other website that has more than a million users and is owned by a company in one of a series of foreign adversary designated countries. And the statute it refers to for defining foreign adversaries is a pre existing statute. So it says basically if you're gonna have a social media app, and there's some technical definitions, but it's a pretty brief description. It can't be controlled by foreign government, that is a foreign adversary as defined by this pre existing statute under the ACT app stores and hosting services cannot distribute this foreign adversary controlled app unless it is divested. So to be precise and, I'm sure we'll talk about this more, the act does not ban TikTok.
It requires its divestiture from ByteDance, a Chinese government controlled company. And I think that's important before I get into history, because this is fundamentally a law about regulating the ownership structure of communications infrastructure. The briefs that I filed also really relies on history and goes back to history, because there is a long deep tradition in this country. And yes, in other countries, a tradition that is steeped in a vision of sovereignty. And before I get to history, Jeffrey, I'd just like to briefly talk about sovereignty, 'cause that's really, to me what's at stake here is that the idea of self-governance is to me, essential for freedom, essential for human liberty, essential for democracy. And self-governance requires sovereignty, which requires a nation that is self-governing. And an essential feature of sovereignty includes the ability to restrict foreign governments from interfering in domestic affairs.
So at the constitutional convention, it's not just that Hamilton talked about the threat of foreign interference, it was close to a constant conversation. The Emoluments Clause, unfortunately, is rearing its head again as Donald Trump is poised to enter office with, again, looking to be violating the foreign emoluments clause. Embedded in our constitution is a law that prohibits foreign governments, in particular, from giving gifts or anything of value to presidents. There's been restrictions on foreign banks since the founding of the country, restrictions on foreign ownership of shipping, and in particular, the greatest area of activity has been restrictions on ownership of communications infrastructure. So the Radio Act and various amendments to that, up to this current day limit foreign ownership of radio, television, and other infrastructure. You may remember that Murdoch had to become an American citizen in order to run his media empire here.
And so, what I see as a core regulation of ownership by foreign governments is a core feature of sovereignty and doesn't implicate the First Amendment, but rather falls directly in line with a 240 odd year history of protecting American democracy. Now, whether or not you agree with a particular law, and I actually do think I do support the particular law, I think that history is extremely important. So when we think of like the cluster of cases we put it with, I put this with, not just with the history of cases, upholding foreign restrictions, but with then Judge Kavanaugh saying it's okay to limit, foreign contributions to campaigns in the United States with the series of efforts around the country to limit foreign corporate Super PACS. That there's a sort of series of efforts that I think are more urgent, because of the nature of technology to protect American democracy from foreign governmental interference.
Jameel Jaffer advocates for counter-speech, disclosure, and privacy laws instead, warning such bans risk enabling broader restrictions on foreign information access.
Jameel Jaffer: I don't think the government has any legitimate interest in protecting us from ideas that we want to hear or information that we wanna receive. And I think that the Lamont case that I mentioned earlier is good support for that proposition. Now, the government says that look, our concern here isn't that Americans want to receive foreign propaganda but the covertness of it, Americans are never gonna know that TikTok's algorithm has been hijacked by the Chinese Communist Party. But I think if that's the government's concern, it's a concern that can be addressed through counter speech and disclosure. It's not clear to me why the president at a press conference couldn't just make the case to the American people that this platform is propaganda or might be propaganda and should be avoided for that reason.
And then Americans can make their own decision whether to access it or not, just as they can make their own decision about whether to read books by Karl Marx or access propaganda of other countries, that's a decision that individuals can make with the information that the government gives them. Or the government could require TikTok, like if the concern is that TikTok is effectively operating as an agent for the Chinese government, the government, the US government can require TikTok to register as a foreign agent, there's already a law that I think would require TikTok to register as a foreign agent in those circumstances. And TikTok's officers and directors could be prosecuted if they didn't register, and I think that law is perfectly constitutional, at least as applied to these circumstances.
And it seems to me that those kinds of things, counter speech and disclosure, would address the concern about the covertness of the feared propaganda. Now, Zephyr in this conversation, I think to some extent, Zephyr and I have been talking past each other because I keep focusing on the concerns about propaganda and foreign manipulation. And Zephyr focuses on the concerns about data collection. Zephyr's right that TikTok collects a ton of information about Americans. I agree with Zephyr that something should be done about that. I think where we disagree is about whether this particular law is the thing that should be done about it. This is a law that focuses on TikTok specifically, it's a law that was animated by concerns about content, not by concerns about data. I think that if Congress were really interested in protecting Americans from the Chinese government's collection of their data, Congress would pass the kind of privacy law that Zephyr and others have been proposing for many, many years.
That would be an appropriate and effective and constitutional way to protect Americans’ privacy, and it wouldn't restrict anyone from accessing speech that they want to access. Now, that said what's gonna happen in this case. I fear that Zephyr is right that the court is gonna uphold this ban. The slippery slope I'm worried about is different from the one that Zephyr just described. What I'm worried about is, the court upholds this law, and as a result, legislatures around the country have new power to "protect" Americans from foreign propaganda by restricting their access to information and media. And that kind of power I think, will have implications far beyond TikTok, and we know that because we've seen how that kind of power is used in other places. It's one of the things that has historically distinguished open societies from closed societies. Does your government restrict you from accessing information from abroad? And I worry that by putting us on the other side of that line, the court will put us on a new path here that will result in, many, many more restrictions on our ability to access ideas and information from elsewhere.
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