The Supreme Court’s Tiktok ruling is an ominous turn for online discourse

When the Supreme Court upheld a law Ban Tychok from the United Statesit seemed well that its rule could be wavered in application beyond a single application. The judges delivered Unsigned opinion With a quote from Judge Felix Frankfurter from 1944: “In considering the application of established legal rules to the ‘quite new problems’ raised by aircraft and radio, we must be careful not to ‘embarrass the future’.”

Last Friday, the court attempted to accomplish this with a narrow ruling: a decision that upheld the government’s ability to block a single service on a narrow timeline, while emphasizing limited scope regarding “new technologies with transformative capabilities.” However, Central A Confused political circus On Tiktok, some legal experts believe the Supreme Court ruling could have a broad ripple effect on speech law and technology law — there’s no agreement on what that would be.

“Although narrowly written, it also seems clear that they want to put a flag on these types of questions,” says Sarah Krebs, director of the Technology Policy Institute at Cornell University’s School of Public Policy. University of Chicago Law Professor Genevieve Laquierre Put it bluntly on Bluesky“The court tried but failed to create a new law here.”

Laquierre’s main concern, echoed by several Amicus briefs in the case, is that the Supreme Court allows some form of back-speech regulation. At oral arguments, the US government insisted that the ban was not a First Amendment issue because it targeted only corporate structure — in this case, Tiktok’s foreign ownership. But Tychok argued that lawmakers hated Tychok and its users’ rhetoric and merely found an excuse to punish it. At the very least, Lakier and others worry that the Supreme Court ruling could allow something like this to happen to other communications platforms.

“The worst part of the opinion (I now think) is that it gives[governments]room to whitewash bad content-based motives by countering the neutral ones of reasonable content,” Laquier wrote. The court decided that selling works is not an expressive act, but it is This conflicts argue With one of its most widely known provisions: Citizens United v. Federal Election Commissionwho found that an act that does not explicitly involve speech (donating to political campaigns) can still rely on a form of speech.

Then there is the arbitrator’s decision that national security can justify potential speech suppression. Jameel Jaffer, executive director of Amendment Fund First Amendment, said the court “weakened the First Amendment and expanded the government’s power to restrict speech in the name of national security.” ACLU Deputy Director of the Homeland Security Project Patrick Toomey echoed these concerns: “The Supreme Court is giving the executive branch unprecedented power to silence its speech, increasing the risk of Trump’s sweeping calls to protect our constitutional rights.” “

Kreps believes the ruling is unlikely to bring a wave of oversight for US-based companies. “I think part of the view was really narrow and very keen that this foreign ownership put it in a completely different category,” she says. “US-owned platforms remain strongly covered under Section 230.”

But if nothing else, the decision “will make it more difficult for the United States to challenge the growing number of censored speech regulations targeting U.S.-based platforms in other countries,” writes Jacob McHangama, executive director of the Future of Free Speech, a nonpartisan Throttler. At Vanderbilt University.

While some fear the future of speech regulations wrapped in national security rhetoric, others make the opposite argument: that it will prevent companies from getting away with regulation by hiding behind the First Amendment.

The Open Markets Institute, which advocates for stronger antitrust enforcement, took a positive view of the ruling — though it is unconvinced of the law’s merits. “The Supreme Court reaffirms the important precedent that Congress retains the primary legislative authority to regulate corporations,” Daniel Hanley says in a statement. “In other words, companies may not hide behind bogus First Amendment arguments in order to avoid selective regulation.”

University of Colorado Law School professor Blake Reed says the ruling is unlikely to affect some basic legal questions, such as how a court will determine whether future technology laws raise First Amendment concerns. He believes Tiktok made a weak case for its own interests, especially since the law’s penalties apply to app stores and hosting services, not Tiktok itself. “Tiktok had a harder job than it seemed to think it did in proving how its rhetoric was implicated,” Reed says. “When your rhetoric is contingent on the rhetoric of platforms that won’t show up and fight the government on your behalf, it’s a tough place to be.”

Other platforms have made similar arguments convincingly, though — Reid, for example, pointed to 2024 NetChoice Judgments recognized Content moderation As an expressive speech.

The Tiktok ruling could change how courts across the country address a crucial issue: the level of scrutiny applied to lawsuits alleging First Amendment violations, a decision that dramatically affects their likelihood of success. The government put forward two separate justifications for its ban: concerns that China was collecting American data and that it could manipulate the Tiktok algorithm for propaganda purposes. The court seemed skeptical of the latter argument, deciding that data collection alone justified upholding the law. “The court was open here to say, ‘We’re going to look beyond justification that we might have some other concerns and look for the one who seems legitimate,'” Reed says. He predicts that lower courts could decide “maybe we can be a little more pushy” than the claims lawmakers make about why they passed Internet regulation.

It’s a balancing act the Supreme Court will have to do again later this year. Last week, the court Arguments were held in Free Expression Alliance, Inc. Against Paxtonwhich pits First Amendment rights against state legislatures’ concerns about children’s access to pornography. That decision will depend on the level of scrutiny the court applies to it—and its ruling could upend a precedent two decades ago of age-related and ageist parts of the Internet.

However, Reid sees the role of Tiktok governance as “a very small change at the margins” in the grand scheme of things. Ultimately, Reed says, “the biggest thing about this case is just the impact on Tiktok itself.”