In its December 6, 2024 decision, the U.S. Court of Appeals for the District of Columbia Circuit played Grinch. Not only did it issue a sloppy, poorly reasoned verdict upholding the government’s TikTok ban, it refused to extend the divest-or-die deadline by a few weeks so that the case could be adequately considered by the Supreme Court. The deadline for filing amicus briefs to the Supreme Court attempting to reverse the American attempt to lurch into Chinese-style blocking of Internet access was December 27. That meant that the elves working to protect our First Amendment rights had to work full time during the Christmas holidays.
IGP’s workshop of happy warrior-elves rose to the challenge. We detached ourselves from the Tik-Tok sponsored amici, which is trying to salvage Project Texas (itself a constitutionally troubling form of state control of the media), and wrote our own brief focusing squarely on the right of the American people to access any information from any source. We told the court that Americans have a constitutional right to communicate on their platform of choice and to receive information from foreign sources, regardless of whether our federal government approves of that information or considers the source an “adversary.” Whether TikTok Inc. is commercially motivated or a Trojan Horse (it is clearly the former), whether the TikTok corporation has any right to express itself in the American market, are both now secondary issues in this case. It’s our own rights – American users’ rights – that are at stake here, as well as the example America sets for the world. We blasted the D.C. Circuit court’s “deference” to the security agencies, arguing that these agencies will always subordinate civil liberties to their concept of security, and it is the Court’s responsibility to assess the threat and strike the balance between the two. We noted that the court’s bizarre rationale for governmental intervention – that censorship of TikTok is not really censorship because it protects Americans from Chinese censorship which is not even happening – makes no sense.
“At stake here,” we wrote, “is the ability of Americans to access an information source, and any legal rationale for governmental interference with that right opens the door to a broad range of First Amendment incursions.” The court’s rationale for the TikTok ban,to put it more bluntly, is exactly the same as the Chinese Communist Party’s rationale for its own regime of Internet censorship: a belief that exposure to uncontrolled communication from foreign sources is a threat to the existence of the government. If this decision is upheld, it will be the biggest setback to freedom of expression since the rise of a globalized Internet, a damaging reversal of the 1997 watershed Reno v ACLU case, which killed the Communications Decency Act. The court swallows the Justice Department’s threat inflation hook, line and sinker, acting as if TikTok is the only media outlet in the United States, its users have no agency, and thus any Chinese government pressure on ByteDance could instantly transform the whole country into zombies under the control of a foreign adversary. The Court also showed that it does not understand the legal and regulatory practice regarding foreign ownership of media, confusing restrictions on ownership of radio frequencies (which do exist) with restrictions on American’s access to foreign websites, apps or media outlets (which do not exist).
We’ve linked to our full brief, which of course is worded much more temperately. Download and read the IGP Amicus brief here. The appeals court decision was a real setback. A lot is at stake and we can’t allow critical rights to be eliminated in a holiday lull.
