Constitutional common sense has prevailed. Early on Friday, a unanimous Supreme Court upheld the Protecting Americans From Foreign-Adversary-Controlled Applications Act, which will effectively ban TikTok in the United States unless it divests itself of Chinese control.
The court’s opinion was simple and straightforward. First, it raised doubts that the First Amendment even applied to the case at all. The act regulates foreign control of the platform and doesn’t directly apply to any of the content.
But the court assumed that the First Amendment applied, and analyzed the case using First Amendment principles. The key element of the court’s reasoning was its recognition that the ban was “content neutral,” meaning that it wasn’t aimed at any of the expression actually on the platform.
It was aimed instead at the control of the platform and the control of the personal information that TikTok collects through the platform. And in that case, the court recognized the significant national security risks in allowing a hostile foreign power that much direct access to the American public square, and that much access to Americans’ personal information.
The argument that Congress couldn’t regulate Chinese control of TikTok was always a constitutional long shot. There was never a good chance that TikTok would prevail in court, but there have been no significant moves to sell the company — at least not yet.
Instead, TikTok seems to have pushed all its chips onto the political table. Donald Trump opposes the ban, and he may attempt to circumvent it with an executive order. President Biden has reportedly said he won’t enforce it before Trump takes office. Roughly 170 million Americans use the app, and many politicians appear to be realizing that TikTok users are not going to be happy if and when their app goes dark.
Republicans and Democrats should hold their ground. In many ways, the ban is a virtual national security I.Q. test. Why would a rational nation give its most dangerous foe such comprehensive access to American data?
As I wrote last week, it’s not hard to imagine scenarios in which China could use the app to sow chaos and confusion through blackmail and by sending waves of disinformation and propaganda into American homes.
Americans are slowly waking up to the reality that we’re in a cold war with China. But the moment that TikTok disappears from their phones might mark a more tangible turning point. The old world of cooperation is truly over. The new age of competition has begun.
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