There is a concerning contingent of libertarian legal theorists who believe that none of the traditional notions of the First Amendment’s Free Speech Clause should matter. Typically, we have always understood the First Amendment’s underlying interest to be, as Justice Samuel Alito explained it, “fostering democratic self-government and furthering the search for truth.” Libertarians maintain the radical, and thoroughly constitutionally incorrect, view that our First Amendment decrees that corporate speech must trump an individual’s.
It’s why this Supreme Court term is so important to get right. The Court must decide two cases—one concerning TikTok and the other about kids’ access to pornography— to determine whether our constitutional right to free speech is a bulwark or a weapon used by ideologues and Big Tech firms to degrade traditional American values, like protecting children and ensuring our national security.
Here’s the rub: In the 1980s, these libertarian legal scholars gained an outsized influence over our understanding of free speech, and they are potentially poised to seize complete control in the Big Tech era.
If they succeed, our nation’s free speech jurisprudence will have one master: Big Tech.
In our current context, these free-market ideologues and their Big Tech allies argue that even automated algorithms are the way that a platform speaks, meaning that our courts must provide Big Tech companies with a license to do whatever they want, irrespective of who they harm, so as to not burden said speech.
But where’s the limit? And how does this First Amendment defense play out for harms caused by social media?
Does this mean that Meta would have a free speech defense after its algorithm connected pedophiles to minors through promoted content or various hashtags? Does it protect Snapchat when it connects kids to drug dealers and facilitates the sale? Does it shield TikTok from liability when promoting dangerous challenges that have led to a slew of accidental child deaths or hospitalizations?
Big Tech and their libertarian water carriers seem to think so. To them, any restriction on an algorithm violates their obscure and ill-defined concept of the marketplace of ideas no matter how high the bodies stack.
This outlandish view has serious consequences. As Third Circuit Court Judge Paul Matey lamented, this perspective is shared by “a host of purveyors of pornography, self-mutilation, and exploitation…[to] smuggle constitutional conceptions of a ‘free trade in ideas’ into a digital ‘cauldron of illicit loves’ that leap and boil with no oversight, no accountability, no remedy.”
Fear not, the Court has two cases that are poised to set us back on the right course.
First up is TikTok v. Garland. This case involves TikTok’s challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act, a recent federal law that requires the company to divest from ByteDance, its parent company and a known Chinese government corporate affiliate, or face a nationwide ban. Lawmakers passed it due to concerns that China can use its influence over ByteDance’s ownership interest in TikTok to collect troves of sensitive data from Americans in order to conduct espionage campaigns within our nation.
To counter, TikTok argues that it has a First Amendment right to maintain their current corporate relationship with ByteDance. In reality, the company likely has to make this contorted First Amendment claim because China won’t let it sell, but even still the American record is replete with ringing endorsements from doctrinaire libertarian and free speech activist groups, like the Foundation for Individual Rights and Expression, supporting TikTok’s extremely odd First Amendment position.
For TikTok and its supporters to succeed, the Court would have to ignore a whole host of First Amendment jurisprudence. Indeed, courts have largely upheld foreign ownership restrictions on communications platforms, like the one at issue in TikTok, without a scintilla of First Amendment concern.
If the Court finds otherwise, it’s simply unjustifiable!
Just consider the First Amendment’s author, James Madison, and his extreme skepticism of foreign nations. Indeed, Madison baked provisions throughout the Constitution precisely to address the issue of foreign interference. For instance, he added the treaty ratification rule in the Constitution to reduce “the power of foreign nations to obstruct our retaliating measures on them by a corrupt influence.” Better yet, Article I includes the Foreign Commerce Clause that grants Congress authority to “regulate Commerce with foreign nations,” which the framers intended the legislative branch to use for the exact purposes presented in TikTok. And yet, TikTok’s underlying contention is that the First Amendment can be undermined so that it can warp our kids’ minds and threaten our national security at the behest of the Chinese government.
The other is Free Speech Coalition v. Paxton. This case considers whether Texas can impose age verification requirements on hardcore pornography sites to ensure kids are not accessing them. The Free Speech Coalition—a trade association representing pornographers—and a whole host of libertarian groups, including the CATO Institute and other Big Tech activists, argue that Texas’s law inadvertently hampers adult speech. Why? By requiring adults to verify their age, the Coalition argues that action would inspire minor embarrassment for them when identifying themselves to a porn site. Thus, adults will be deterred from accessing unfettered hardcore porn.
Nonsense.
To start, restricting kids’ access to pornography was historically a non-issue for courts. Indeed, courts treated hardcore pornography as “obscenity” that required courts to ask simply whether the government acted rationally when imposing such content restrictions (i.e., rational basis review). Because rational basis is the lowest form of judicial review, laws imposing age restrictions on these obscene materials were largely held constitutional.
That is until the introduction of the Internet turned this obvious principle on its head. In both Ashcroft v. ACLU II and Reno v. ACLU, the Supreme Court effectively made applying age restrictions to online pornography sites virtually a non-starter. How? The Court heightened its review of such laws from its lowest to its highest scrutiny (i.e., strict scrutiny). To libertarians’ delight, now almost all attempts to shield kids from online pornography are a First Amendment violation.
But is unrestricted access to hardcore pornography really what Madison intended when writing the First Amendment? Even if it means introducing its contents to children? I sincerely doubt it.
We do have some good news. The lower courts in both cases rejected this libertarian view. In TikTok, the D.C. Circuit unanimously found the law constitutional and stated firmly that, “the First Amendment exists to protect free speech in the United States. Here the government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.” In Paxton, the Fifth Circuit upheld Texas’s law, and restored the judicial review back to rational basis.
However, the Supreme Court could reverse all of that progress by overturning both decisions. That result would not only provide a massive windfall for both Big Tech and the porn industry, but also would transform James Madison’s tool against government interference in the free marketplace of ideas into a weapon for pornographers to inundate children with sexually obscene material and foreign governments to spy on the American people.
It would be an untenable result for every American who believes in true free speech and fidelity to the Constitution. And it would do real harm to Americans across the nation by destroying the very foundation upon which our First Amendment stands.