Last week, the Supreme Court unanimously affirmed the constitutionality of a federal law that bans the distribution of TikTok in the United States unless and until it is sold to a new owner. The Court upheld the law after applying a remarkably deferential version of the intermediate scrutiny standard that courts apply in First Amendment cases to content-neutral regulations of speech.
That the Court applied intermediate scrutiny to a law that was not only motivated but affirmatively justified by lawmakers’ concern with the mix of content displayed on TikTok—as well as by concerns with Americans’ data privacy—is deeply problematic. More problematic, however, is the fact that seven of the justices expressed significant doubt that the law had to satisfy even that relatively lax standard. Because the law required only that TikTok be sold to a new owner for it to be able to continue to operate in the United States, they argued, it wasn’t properly speaking a speech regulation at all. It was a regulation of corporate control that only indirectly burdened expressive interests, and therefore did not necessarily implicate the First Amendment.
Given that the Court ultimately assumed, for the sake of argument, that the First Amendment did apply, it would be easy enough to gloss over this part of the decision. But it is a truly incredible fact, and one we should not ignore, that a super-majority of the justices on what some have described as “the most speech-protective Court in memory” were not sure whether the First Amendment provided any protection against a law that threatened to shut down a social media platform used by something like 170 million Americans to speak, listen, and associate simply because the law also allowed for divestment. If the government were to threaten Elon Musk or Mark Zuckerburg—or for that matter, Arthur Sulzberger—with the forced sale or shutdown of X, Facebook, or the New York Times unless they sold these businesses to a buyer whom President Trump approved, we would all hopefully recognize that it would imperil the First Amendment rights not only of the owners but of us all. Nevertheless, in TikTok v. Garland, seven members of the Court suggested otherwise.
As I explain in this brief post, their mistake is both deeply rooted in the modern First Amendment and has profound implications for the protection of free speech in the age of Trump. A First Amendment that permitted the government to target the economic infrastructure of speech without serious constitutional scrutiny would give the President a powerful weapon to silence his adversaries and to control the information environment. And yet, this may be the First Amendment that we have.
Regulating Communication Infrastructure
Indeed, the cramped view of the First Amendment that the justices articulated in TikTok v. Garland is not entirely new, even if its application to this case was particularly striking. As the per curiam opinion noted, TikTok was unable at oral argument to identify a single prior precedent in which the Court had applied First Amendment scrutiny to a law that, like the TikTok law, restricted who could own a speech platform.
That TikTok had such trouble finding supportive precedent reflects, in part, the historically unprecedented nature of the ban. Traditionally, the federal government has not used the tool of divestiture as a means of regulating the speech market, either domestically or internationally. The only exceptions to this rule are the limited number of cases in which courts ordered the divestiture of media companies, like AT&T, who were found to have engaged in serious anticompetitive behavior. And in those cases, these divestitures did not usually involve the forced sale of the companies to new owners (with the attendant threat of corruption that raises) but instead their breakup into constituent parts. One might thus chalk up the lack of supportive precedent to historical contingency—and to the novelty and aggressiveness of what Congress did here.
But this is far from a complete explanation for the absence of supportive precedent. If one loosens the constraints of the analogy somewhat, what one finds is plenty of historical examples of laws that regulate corporate control of media businesses—and do so for speech-related ends. Although it’s true that lawmakers haven’t in the past forced the divestiture of large media companies on speculative national security grounds, they have imposed all kinds of ex ante restrictions on corporate ownership and control.
In the early 1940s, for example, the FCC enacted so-called “chain broadcasting rules” that sharply limited the kinds of contractual relationships individual radio stations could enter into with the national networks and prohibited the national networks from owning more than one station in any market. Over the next few decades, the FCC enacted many additional restrictions on ownership and corporate control. It limited how many radio stations or television networks any individual corporation could control; it prohibited the same company from owning a newspaper and a radio station in the same market; and it imposed other kinds of cross-ownership limitations on radio, television and newspaper companies.
These laws, like the TikTok ban, clearly regulated the infrastructure of public communication. And they did so, much like the TikTok ban, in an effort to promote a particular conception of the democratic public sphere (in the case of the chain broadcasting rules and ownership restrictions, one that was diverse and locally responsive; in the case of the TikTok ban, one that was not distorted by Chinese propaganda). Yet these laws, although the target of a fair share of constitutional challenges, have not generally been understood as the kinds of regulations to which the First Amendment applies. Instead, courts, including the Supreme Court, have traditionally reviewed their constitutionality under the rational basis scrutiny that applies to ordinary economic and commercial regulation.
The justices were not wrong, in other words, that, as a matter of historical practice, courts have not typically regarded laws that regulate the property or contractual relationships that govern the operation of the public sphere as speech regulations that are entitled to heightened scrutiny. Their uncertainty about how to fit the TikTok ban into the First Amendment cannot, therefore, be chalked up simply to the politics of its members, or the novelty of the TikTok ban. What it reflects instead is something more fundamental about the modern First Amendment: namely, its long-standing tendency to conceptualize the regulation of the speech marketplace as distinct from, indeed entirely severable from, the regulation of the economic relationships that make that speech marketplace possible, and that motivate the actions of (many of) its participants.
Modern First Amendment law fails, in other words, to recognize one of the core precepts of law and political economy: that rights cannot be disaggregated from the material and economic relationships that make their exercise possible. This explains why courts typically do not view contractual or property-based restrictions on expressive freedom (non-disclosure agreements, for example) as actions that trigger First Amendment scrutiny, even when they are issued by government actors. It explains why ownership restrictions—even those that profoundly alter the operation of the public sphere—are not typically understood to implicate the First Amendment. And it explains why the justices were so unsure that the TikTok ban has anything to do with freedom of speech. After all, the law doesn’t directly stop anyone from speaking or listening. It just deprives them of the infrastructure that makes it possible for them to do so, at least in the particular form that the platform enabled. This is not the kind of law that courts easily recognize as a speech regulation.
A Not-So-Realist First Amendment
The fact that First Amendment law distinguishes in this crude way between laws that regulate property relations and laws that regulate speech has its virtues. For one thing, it has allowed the FCC to use the structural regulations described above to prevent corporate consolidation of control over the public sphere without having to justify its actions within the terms of the libertarian First Amendment. In other words, it has allowed the practice of speech regulation to be much more attuned to the democratic deformations that can be produced by economic concentration than might otherwise have been possible.
But the inattentiveness of First Amendment doctrine to how property relationships impact expressive freedom also has very serious drawbacks. It has meant, for one thing, that the First Amendment has had nothing to say about the rolling back of much of this structural regulation over the past four decades or so, or the dramatic consolidation of corporate control that has resulted. Indeed, the First Amendment cases have barely noticed the profound changes that have taken place in the organization of the democratic public sphere over the past four decades—the demise of local journalism, the consolidation of control over the radio system, the rise of great speech behemoths like Alphabet, Amazon and Meta.
This formalistic conception of expressive freedom would be bad enough if all it meant was that the First Amendment was blind to real-world power dynamics. But it has another, more dangerous, weakness: it creates a potential loophole in First Amendment protections that can be exploited. The sharp dividing line between property and speech regulation means that the First Amendment is a less than reliable safeguard against the exercise of certain kinds of governmental speech repression—sadly enough, the kinds of government repression that have been in the past, and are likely to be in the future, a hallmark of the Trump presidency.
From the moment he stepped off the golden staircase in 2015, one of the means by which Trump has exercised power, and one of the objectives of his power, has been to dominate the information environment. He has sought not only to be the only thing everyone talks about, but to control how that conversation takes place. Perhaps the primary way Trump has done so is by threatening those who fail to comply with his wishes with financial and regulatory harm—with higher operating expenses, or expensive litigation, or procedural delay and obstruction. And because media businesses are businesses, structured around the accrual of profit, these threats of financial harm and regulatory delay can be incredibly powerful in coercing compliance, as the last few weeks and months of CEOs falling into line have illustrated quite dramatically.
What Trump’s thus far very successful bullying of both legacy and digital media companies is likely to produce is a chilled and chastened public sphere—precisely the outcome the First Amendment is supposed to protect us against. Yet it is not obvious that courts will recognize Trump’s threats—to deny merger approval to recalcitrant media organizations, to question the license renewal of disobedient television networks, or to raise postal rates—as the kinds of state actions that implicate the First Amendment. This is because in all cases, these threats impact speech only indirectly, just as the TikTok ban did.
The New Era of Jawboning
Courts, of course, should recognize that these kinds of threats and exercises of regulatory warfare implicate the First Amendment. And in fact, they have the doctrinal tools to do so. Indeed, the one bright spot in the murk that is recent free speech law is the Court’s decision last term in NRA v Vullo, which reaffirmed a principle the Warren Court first articulated in 1963: namely, that when officials threaten to use their levers of power to harm a speaker or speech company’s economic or reputational interests in order to alter how they regulate speech, they violate the First Amendment as surely as if they had targeted speech directly. What Vullo makes clear is that the modern doctrine’s concern with the bad intentions of government officials allows courts to recognize, in certain respects, how officials can use the levers of economic power to regulate speech.
Nevertheless, here too, the opinion last week in TikTok v. Garland raises some red flags. This is because in that opinion the Court not only expressed doubt about whether the TikTok ban implicated the First Amendment because it regulated corporate ownership, but also strongly suggested that, even when government actors—in this case, Congress—regulate speech businesses because they don’t like the content choices they make, their actions still might evade heightened scrutiny so long as there is some other, legitimate reason they can point to for doing what they did. The opinion provides government actors, including President Trump, an avenue for whitewashing what is in fact authoritarian jawboning as something else.
The fact that seven members of the Court failed to recognize that they were enabling this kind of speech repression shows that there is much work to be done, both inside and outside courts, to explain why efforts to manipulate the economic infrastructure of the democratic public sphere pose a direct threat to the democratic values the First Amendment is supposed to care about. The good news (and bad news also) is that there is plenty of material available to make the point.
The past few days have provided dramatic evidence of how what appear to be merely regulations of corporate structure and property relations can so easily be transformed into tools of political control. At the time of writing, TikTok is operating in the United States, but it appears to be doing so solely as a result of the assurances of the new President that he will not enforce the law against it. As a result, the ban has not only not prevented Chinese manipulation of the US media environment, but it has also given our new President another lever—and a very powerful one—that he can use to manipulate the public sphere in ways that suit his interests. None of this was unforeseeable. Yet none of the members of the Court gave any indication that they were aware that what they were dealing with was a red-hot threat to free speech values.
We cannot let courts keep making this mistake. In the era of Trump, censorship may not announce itself overtly; it may and very likely will target the economic infrastructure of speech rather than speech itself. But this does not make it any less a threat to the democratic values that the First Amendment is supposed to protect. Trump knows this well, which is why he is so good at wielding power as he does. It is time for American courts to recognize it also. Otherwise, clearly censorial government actions—actions justified, in fact, by far less than the TikTok ban—will simply flow through the First Amendment’s (pretty large) cracks.
