The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
TikTok, HamHom, and the First Amendment
I was having a conversation with my Stanford colleague Diego Zambrano, and this perspective on the TikTok case emerged. I'm not positive it's a sound perspective; but I thought I'd pass it along and see what people thought about it.
[1.] Let's imagine for a moment that there was a social media platform, HamHom, that was run by Hamas. Hamas is a designated foreign terrorist organization, so the federal material support statute outlaws "knowingly provid[ing] material support or resources" to it. That includes providing "communications equipment" and general "facilities" or "service[s]." It seems to me that it would therefore be illegal for, say, Google and Apple to carry the HamHom app in their app stores, or to provide internet hosting services for HamHom.
And this application of the material support statute to HamHom would be constitutional, given Holder v. Humanitarian Law Project (2010). Holder upheld parallel provisions of the material support statute that banned providing "training" and "expert advice or assistance" to designated foreign terrorist organizations.
The Court recognized that the statute restricted speech, including the challengers' plans to "train members of [a terrorist group] on how to use humanitarian and international law to peacefully resolve disputes," and to "teach [the group's] members how to petition various representative bodies such as the United Nations for relief." But the Court nonetheless upheld the law, because it was "carefully drawn" and served "an urgent objective of the highest order"—the interest in "combating terrorism." That was especially so because the law targeted activity coordinated with the foreign organization, and excluded "independent advocacy." (Op-eds in the New York Times praising a foreign terrorist organization weren't covered, however much they might help the organization.)
Given that providing training and expert advice to Hamas is illegal and constitutionally unprotected, providing it with communications facilities (again, such as internet hosting or app distribution) would be, too. That would be true even if our concern is Hamas's use of the facilities as a means of gathering detailed information about individual Americans (e.g., what they're viewing, what they're searching for, and so on) or as a means of spreading Hamas propaganda. And it would be true even if HamHom had somehow drawn a lot of American users, so that banning it (and thus making American users switch to other platforms) would make it harder for them to reach the audience that they had developed on HamHom.
[2.] Now of course the analogy between HamHom and TikTok, and Hamas and China, is imperfect. (That's why it's an analogy.) TikTok isn't a designated foreign terrorist organization, and the Chinese government, which I think can reasonably be seen as having potential indirect power over TikTok, isn't one, either.
The foreign terrorist organization statute basically treats us as being at war with those organizations, and forbids all support for them. But China, though perhaps our most dangerous foreign adversary, is also a tremendously important trading partner. American companies do over $500 billion in yearly trade with Chinese companies, which doubtless ends up providing a great deal of material support to the Chinese government; yet we don't prohibit that. International relations are complicated matters, in which countries have to reconcile many often conflicting concerns.
But though the interest in protecting us against Chinese power isn't the same as the interest in combating foreign terrorist, it seems to me that it's at least as great in magnitude. Indeed, the Chinese government poses much greater danger than do foreign terrorist organizations to liberty throughout the world, to American interests throughout the world, and to the security of our allies and our own nation. And that danger is magnified when we're talking about not just relatively minor contributions to a foreign terrorist organization, but the provision of communications services for a massive social media platform potentially controlled by the Chinese government.
To be sure, China also offers us much more potential value through peaceful trade and cooperation—but to benefit from that value, we need to take steps to protect ourselves from Chinese power. Under Holder v. Humanitarian Law Project, we can ban Americans' providing app store space and Internet hosting to terrorist-run platforms. Likewise, I think, it's constitutional for the TikTok divestment statute to ban Americans' providing app store space and Internet hosting to a platform that's ultimately under the thumb of the Chinese government.
[3.] The cases also differ in the precise means through which the relevant material support will undermine the relevant government interest. In Holder, one danger was that material support to terrorist organizations can help the organizations' engage in terrorist attacks. A second was that it "helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks." A third was that such support frees up money that can be used for such attacks.
In TikTok, one danger is that providing communications facilities that let TikTok operate in the U.S. (and "collect[] vast amounts of information from and about its American users") can help Chinese intelligence agencies "exploit sensitive data on individual Americans to undermine U.S. interests, including by recruiting assets, identifying Americans involved in intelligence, and pressuring and blackmailing our citizens to assist China." A second is that providing such facilities can help China subtly influence American political debate. But again, despite the difference in how the prohibited actions can substantially undermine the government interest, it seems that the prohibited actions likely would substantially undermine that interest.
Nor does it matter under Holder that reasonable minds might differ about the magnitude (or even the existence) of the threat. As the Holder majority put it,
[C]oncerns of national security and foreign relations do not warrant … defer[ring] to the Government's reading of the First Amendment …. [T]he Government's "authority and expertise in these matters do not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals." But when it comes to collecting evidence and drawing factual inferences in this area, "the lack of competence on the part of the courts is marked," and respect for the Government's conclusions is appropriate.
One reason for that respect is that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess…. [D]emanding hard proof—with "detail," "specific facts," and "specific evidence"—that plaintiffs' proposed activities will support terrorist attacks … would be a dangerous requirement.
In this context, conclusions must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government. The material-support statute is, on its face, a preventive measure—it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur. The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.
The same analysis, it seems to me, applies to the TikTok divestment statute. Perhaps it might not apply to attempts to restrict all Chinese government communications. (Again, our relations with China are much more pervasive and complex than with foreign terrorist organizations.) But it would apply to Congressional and Presidential judgments about the perils posed by a social media platform that's as heavily used as TikTok is.
[4.] Now, I should offer a few words of caution. First, to repeat, this is a tentative analysis, and I might well be missing some important things. Second, it is also a general and brief analysis. (I mean "brief" here in the English sense of "brief," not the lawyer sense of calling a 13,000-word document a "brief.") There are many important details that it necessarily elides.
Third, Holder has drawn a good deal of criticism, including a thoughtful dissent by Justice Breyer, joined by Justices Ginsburg and Sotomayor. Indeed, perhaps critics who argued that Holder might be a step down the slippery slope (a concern I take very seriously) might look at this argument and say, "That's precisely the sort of slippage we warned about."
Fourth, this leaves the question of how Lamont v. Postmaster General (1965) fits into all this. Lamont struck down a federal statute under which the Postal Service wouldn't deliver "communist political propaganda" "issued by or on behalf of" certain countries unless the recipient affirmatively informed the Postmaster General that he wanted to receive it. Such a law, the Court held, unconstitutionally interfered with "the addressee's First Amendment rights."
Under the Holder-based reasoning laid out earlier in the post, Congress could have ordered the post office to categorically refuse to deliver all mail sent by or under the control of a Communist foreign government: That would essentially just be declining to provide "communications equipment" or "facilities" to adversary governments. Yet of course this would also have limited Americans' ability to receive such information, even more than the law struck down in Lamont did. (Americans could still get Communist propaganda printed in the U.S. or in friendly nations, but there may well have been less of that than the material coming from the horse's mouth.) Perhaps Lamont might be limited as not applying to such categorical bans, and covering only situations where the government was willing to deliver such foreign government mailings but required affirmative requests by the recipient to do so. But I agree that this wouldn't be fully consistent with some of the broad language in the Lamont opinion.
On the other hand, it seems clear that Holder would authorize a law requiring the post office not to deliver mail from Hamas: Given that Holder upheld a law forbidding even private entities from providing communications services to foreign terrorist organizations, surely the federal government could itself decline to provide such services. And I don't think the First Amendment draws a line between providing communications services to foreign terrorist groups and providing communications services to adversary foreign governments (again, especially when the communications services provide access to a platform that is of such potential espionage and influence value to the adversary government).
In any event, what I laid out above tentatively seems to me to be both an argument for upholding the TikTok divestiture law, and a means of framing a decision upholding the law in a way that least departs from First Amendment precedent. I'd love to hear what others think about this.
