Protecting Speech Against Governments

If I had to identify one paragraph as the key to the majority opinion in TikTok v. Garland, I think it would be this:

In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC's ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice v. Moody (2024) (explaining that a state government "may not interfere with private actors' speech" because the First Amendment prevents "the government from tilting public debate in a preferred direction"). Here the Congress, as the Executive proposed, acted to end the PRC's ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.

Agree or disagree with it, but it seems to me the heart of the argument.

Comments

[Jerry B.]

So, government should not have any control over what is published on Tik Tok or other social media platforms.

Someone should tell the government.

[шинка]

You mean that the government should tell another government that governments shouldn't control the speech of social media platforms which is subsequently a government controlling the speech on social media platforms?

Isn't that one of those logic things?

[Lee Moore]

Not logical, Captain.

If you come across a slavemaster with a gang of roped slaves and you cut the ropes, thereby permitting the slaves to hop on a train and go and get jobs elsewhere in plumbing, banking and computer services, as they choose, far away from whatever task the slavemaster had them at, you are not interfering with the (ex) slaves choice of profession. If they want to stick around with the slavemaster and get re-roped, they can choose that too.

Stopping somebody else stopping the slaves choosing their job is not a case of stopping the slaves choosing their job. It's a case of stopping the slavemaster doing his job. Different sport.

[Riva]

Does "government" in your view include Communist China?

[SimonP]

Bookmarking for when Elon starts manipulating Twitter to promote his "DOGE" efforts and shut down critics of it.

[Stupid Government Tricks]

Bookmark it for the past when Biden et all manipulated Twitter, Facebook, and the rest.

[SimonP]

Bookmarking for when Stupid Government Tricks ceaselessly defends Elon's manipulation of Twitter.

[JesusHadBlondeHairBlueEyes]

Bookmarking for when SimonP ever gets his head out of the State's ass.

[Riva]

You're just going to encourage him with talk like that.

[Life of Brian]

when Elon starts manipulating Twitter to promote his "DOGE" efforts

You mean, by posting about them? The man has over 200 million followers. The @DOGE account created just a few weeks ago already has 2.3 million followers.

and shut down critics of it

I'm sure there will be some sad sacks with a few thousand followers that whine about "manipulation" because their anti-DOGE posts (just like any of their posts) don't get as much reach. But wake me up when there's a non-fabricated issue.

[Stupid Government Tricks]

So TikTok sells itself to the CCP and continues operation as a CCP government outlet. How is that different from all other foreign government "news" outlets? How about VOA RFE and their siblings?

Hypocrisy, thy name is government.

[Roger S]

The CCP does not seem to control TikTok as much as the US govt controls PBS tv and NPR radio. They are funded by the US govt, and they are anti-Trump all the time.

[Brett Bellmore]

It's hard to make the case that the US government controls PBS and NPR, when they're hostile to Trump even when he's President...

[Rog1]

Using his own platform, Musk has positioned himself to manipulate public discourse on X in order to serve his own ends. Musk's ability to do so is at odds with free speech fundamentals.

[Life of Brian]

"Positioned himself to." How ominous.

Under that say-nothing standard, so have Zuck, Jay Graber, and so on.

[Stephen Lathrop]

LoB, you are correct to add the others. Which makes Rog1's point yet more cogent. An information oligarchy is indeed ominous.

[DaveM]

Using his own browser, Rog1 has positioned himself to manipulate public discourse on the VC comment page in order to serve his own ends. Rog1's ability to do so is at odds with free speech fundamentals.

FTFY

[Stephen Lathrop]

DaveM — It is never a surprise to discover that a problem is not actually fixable by adding stupidity.

More generally, what is it with, "FTFY?"

What kind of personality does it take to suppose that is either cogent, effectively sarcastic, or a witticism? Lord knows how often that gets used on this blog. Does anyone know of any instance where you saw that used, without thinking less of the commenter who added it.

[Lee Moore]

The other way of countering foreign government social media manipulation of fair and honest discourse, which spreads disinformation and so sullies the democratic process, is currently on show in .... Romania.

A court just cancelled the recently held first round of the Presidential election on the grounds that those wicked Russkies had been dezinformatsiya-ing up a storm in support of the very bad, very dangerous, very far right candidate who came first, in those utterly sullied elections.

The effect, happily for democracy, is that the erroneous decision of the voters, made in a fog of false consciousness inculcated in the weak and suggestible minds of the voters of Romania, can be corrected, giving them a second chance to elect the current Prime Minister of Romania, who had been knocked out in the first round.

[Riva]

Soros candidate down 10 points? Can't have an election now. It would obviously be an affront to democracy to hold an election.

[Commenter_XY]

There is more to it than what you have said.

It is a matter of great concern, for NATO.

[John F. Carr]

I have not read the entire case yet. I observe from the start that it's odd procedurally. The Appeals Court is reviewing a case where there is no administrative record from an agency and no factual findings by a District Court, but the facts matter.

[Stephen Lathrop]

Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice v. Moody (2024) (explaining that a state government "may not interfere with private actors' speech" because the First Amendment prevents "the government from tilting public debate in a preferred direction").

Is that from the OP a deluded assertion of fact, an expression of ideology, or what? Pure fantasy? Plain loss of touch with reality is more like it.

Yet that interpretation got read to justify government action to heavily burden erstwhile operation of a marketplace of ideas governed jointly by tens of thousands of private publishers. They operated as mutual rivals, holding each other in check, both commercially and ideologically. That method worked fine for many decades—not perfectly, but with regard to the public life of the nation, far better than now. It enjoyed the advantages of free market competition.

What has been the public advantage for the alternative government created—a marketplace of ideas controlled by a tiny coterie of corporate oligarchs? Any public advantage from that remains far from self-evident.

Too bad insight into that contrast is spread so thin among internet utopians. Those foolishly suppose they control a process they remain powerless even to affect, jointly or singly. Self-satisfaction with what they suppose to be personal empowerment prevents internet utopians from looking too closely at what has actually happened to their joint role in public life.

Every time evidence of that powerlessness comes their way, and makes the utopians unhappy, they demand more intervention by government. Which is to say they demand government act to tilt public expression in a myriad of preferred directions. Impossibility to satisfy democratically the diverging preferences of rival myriads is what locks in place the oligarchical control of public life which today's government created, and has learned to prefer.

If you are an internet utopian who thinks otherwise, just keep your eye on what is about to happen with government under siege by that new, government-created information oligarchy. Note the thronging—already under way—of information oligarchs to Mar-A-Lago, to kiss the ring of government, and to trade for a yet-greater share of government's power. Internet utopians' former claim to a controlling share of that power—already sadly reduced—is destined to diminish further.

[Krayt]

The real benefit in the First Amendment isn't that there's value in every last salami-and-beer burp from random yokels, but in denying government and nascent dictators one of the greatest tools of tyranny.

The OP points out that the government allowing foreign governments to come in and censor inside this country is a complete violation of that principle, as surely as if it had done it itself.

Indeed, deliberately revisiting "The Marketplace of Ideas" a few years ago, was a red herring to try to declare some currently protected speech as worthless, and therefore may be censored.

No, that's not how it works. The censor should neither be the arbiter of truth spoken against it, nor the arbiter of worthiness of speech it "permits".

How did Romans chisel Os? I need the O equivalent of the V "u" in Trvthiness. The Wvrthiness.

[Stephen Lathrop]

The real benefit in the First Amendment isn't that there's value in every last salami-and-beer burp from random yokels, but in denying government and nascent dictators one of the greatest tools of tyranny.

Krayt — Of course! I could not agree more.

Problem is, internet utopians have yet to come to terms with the problem of how to impose content standards (without which publishing will cease to be possible) without inviting the government fox into the publishing hen house. So the utopians themselves keep demanding government interventions.

The right method to prevent that was practiced previously. It was the method to let government encourage with civil defamation law tens of thousands of private publishers to impose whatever standards each publisher judged defensible and businesslike—leaving each publisher at liberty to decide content standards and practice publishing without any government case-by-case oversight.

The resulting collective private action relieved government of the burden to make laws to do the same job. The private solution was safer, because profusion and diversity among private publishers prevented any of them from tyrannizing expressive content generally.

Unfortunately, modern law governing internet publishing has perversely relieved internet publishers of liability for contributors' defamatory publications. So the publishers play little or no present role in that respect. And without the burden to read and edit everything prior to publication, today's internet platforms have grown to enjoy a giantistic control over content to rival anything government could have imposed.

[David Nieporent]

No, the problem is bitter old men who resent the fact that they can no longer be gatekeepers.

[Stephen Lathrop]

Nieporent — Your preference, what you advocate in practical fact, is to pretend no gatekeeping is required, even though you have repeatedly said the contrary. In publishing, there is no alternative to gatekeeping, except to do without the publishing. You know that. I have seen you explain it to others on this blog. You were right to do it.

So why the pretense, and why the unfounded personal accusations? A passel of gatekeeping is indispensable to facilitate publishing, and keep it operating. There is a 3-alternative choice about how to accomplish that gatekeeping.

First, turn it over to government. Only a fool would do that on purpose, but bad politics could do it anyway, via fecklessness and happenstance.

Second, to put necessary gatekeeping in the hands of an unaccountable few, who wield the entire gatekeeping power by themselves. That is the giantistic solution now in place, to which almost everyone has objections.

The third alternative is the one I advocate. Disperse all the gatekeeping among the largest possible number of private publishers, and use public policy to encourage maximal diversity and competition among them.

We already know that is a better solution than either of the others, because we have seen all 3 in action. Dispersal of the gatekeeping function among tens of thousands of private publishers proved the safest, most effective, and best accepted means to do it.

It also does the best job of defending publishing from government control. Witness the ongoing coalescence of power among Trump political insiders, and the owners of the nation's media oligarchy.

I doubt anyone saw coming, let alone so soon, a coherence of interests among Trump, Elon Musk, Mark Zuckerberg, Larry Page and Sergey Brin, Patrick Soon-Shiong, and Jeff Bezos. Is that the list of gatekeepers you prefer, Nieporent, or would the nation be wiser to add a few tens of thousands of others—or just to turn gatekeeping over to the government?

[Commenter_XY]

I don't think NetChoice v. Moody really fits here (or do you say N v M is not on all corners).

Netchoice: Government can't censor speech (on a platform)

Tik Tok: The app (not a platform), is designed to influence opinion of app users

These are just not the same things. I don't understand the connection.

What am I missing?

[ReaderY]

I wouldn’t attempt to explain this in these terms. The government could as easily do this to a foreign corporation of a country that protects Free Speech rights as a country that doesn’t. For constitutional purposes, it’s whether our government likes their government or not.

We’ve been friendly and hostile to China on and off for decades. Our policy could change drastically with a new US or Chinese leader.

For a court try to explain the vagaries of US foreign policy in idealistic terms like this, to portray the United States’ current rivals and those on its current undesirable list as enemies of freedom itself, smacks of the kind of propaganda George Orwell satirized in Animal Farm, where every dealing the pigs did was explained in terms of revolutionary ideals.

The Constitution lets us deal with foreign countries and citizens pretty much however we want, idealistically, selfishly, with realpolitik, or any other approach. Idealism stops at the water’s edge.

For this reason, courts shouldn’t serve as propaganda arms for US foreign policy decisions by trying to explain what could equally be selfish or realpolitik decisions in idealistic terms. They should say whether or not the government has the power to do what it did, and not engage in gratuitous cheerleading.

[jdgalt1]

If this ruling stands I expect the government's conduct to be repeated against many speakers who disagree with official narratives, with various false-flag hoaxes such as the FBI's Russia hoax used to falsely label the speakers as agents of foreign governments.

A better approach would have been to charge the company with espionage and prove it. Or possibly to charge it with mishandling its users' private information, thus creating a precedent that should be used to go after Meta and Google, too.