The US Supreme Court, TikTok and Pornography

The Supreme Court heard two cases recently, and it may be a bumpy ride for free speech...

In recent weeks, the US Supreme Court (SCOTUS) has heard oral arguments in two big cases involving free speech. One involves the banning of TikTok until it is sold to a non-Chinese entity. The other involves mandatory age verification for accessing porn sites. Both are interesting as they involve some compelling government interests yet also raise some worrying free speech concerns. Watching them may give us a sense of which way the wind is blowing regarding the new conservative majority court and free speech issues. Below are my thoughts, in listicle format since I think that fits better than trying to force a single narrative framework.

· In the TikTok case, I think the government has an important and compelling interest: preventing the Communist Party of China from using TikTok (owned by a Chinese company) from collecting data on American citizens. I’m not at all an expert in cybersecurity/national defense but, at least on the surface, this seems like an important issue.

· Not being an expert I’m not sure how much critical damage TikTok can actually do and, indeed, that may actually be difficult to prove. I have no doubt China would love to use it in the manner the government describes, so I don’t at all question the bad faith on the part of the Chinese government. I’ve read some descriptions of being able to use TikTok data to locate news media sources who were critical of China but wished to be anonymous, and I find those arguments among the more persuasive for a TikTok ban.

· At the same time, I’m not sure how actually effective a TikTok ban will be. Apparently many users are simply switching to Red Note, another China owned social media platform. I guess the US could do a whack-a-mole game with endless Chinese platforms or figure out how to do some kind of blanket ban of Chinese technology platforms, but that’s not the law currently on offer.

· Interestingly, exiting president Biden signed this ban into law, but incoming President Trump appears at least somewhat skeptical of it. Probably he wants to be the hero, riding in with some dramatic “fix” for the whole issue.

· I’m skeptical that all the motives behind the ban are good though. Some big billionaires appear to want to buy TikTok for what I’m sure would be blue light special prices once the ban is in effect.

· This will be a theme I return to…I also suspect censorship advocates are using some of these cases as foot-in-the-door cases. Get the ball rolling on minor bits of censorship that appear reasonable to the general public, with an eye on expanding censorship down the road.

· I do think there are some real worrying free-speech issues as well. Not for TikTok itself…I don’t think the US owes a Chinese company anything. But for the people who use TikTok or earn livelihoods on it, I think waving away their free speech concerns are callous.

· My experience is that people who say, “Oh, well just use another platform” are disingenuous and will eventually come for that platform too.

· As for the Chinese propaganda aspect of TikTok, I think people’s worries, as with many media moral panics, are foundational upon the belief that people are easily swayed by whatever they see or hear. I’m skeptical of this.

· American attitudes toward China have actually dramatically worsened during the TikTok age. Although there are small differences by generation, most Americans of all ages have unfavorable attitudes toward China. The attitudes of young Americans toward China have worsened alongside everyone else. If you are going to make an argument for the dramatic influence of propaganda, TikTok does not appear to be the anecdote you want to use.

· The impact of propaganda is likely nuanced. Using a couple of other anecdotes, consider Voice of America versus Tokyo Rose. VOA was radio broadcast into countries occupied by the Soviet Union so they could get a sense of what life was like in the west. To the extent it worked (and I’m not sure how much history would be different if only not for VOA), it was because people behind the Iron Curtain already knew things sucked there. So, they were ready for that information. By contrast, Tokyo Rose, a series of broadcasts by Japan aimed at American GIs in the Pacific WWII theater was mainly laughed off as a joke. My point is not that propaganda never works, but its effects are complicated and situational.

· It’s hard to gauge what SCOTUS may do. Most analyses of the oral arguments thought the justices were likely to uphold the ban on TikTok. Scotusblog, which I tend to trust most as a source, seemed a bit more hopeful for the free speech side.

· Ultimately, these are a bunch of old coots who probably don’t know much about or care about social media, and I’m always a bit nervous putting tech cases in the hands of old fogies.

· Unexpectedly, the justices did not release a decision today. Nor have they announced, as of this writing, when a decision will be made. Given the ban takes place in 4 days, that’s not much time. It’s hard to know what this signals…my suspicion is that it means the case isn’t a slam dunk either way, and some of the justices may still be negotiating their positions, but who knows.

· The second case, considering a Texas law requiring age/ID verification for people to access porn sites was heard in oral arguments today.

· As with the TikTok case, the government has a compelling interest…preventing minors from accessing porn sites. Very few people argue minors should access porn sites and requiring an ID is already settled law for brick-and-mortar stores (if these even still exist!)

· The issue, however, is requiring adults to provide an ID may be intimidating, chilling adults from accessing speech they’re entitled to under the First Amendment. That’s particularly true as age verification systems are going to experience data breaches (yes they are, arguments this won’t happen are fantasy), and people are going to have their private details including embarrassing porn habits released to the public. I think this bit is hard for people to wrestle with when balanced against the “protect our babies!” argument, but I do think this is a fair concern free speech advocates have.

· What’s interesting is that this was all settled law in the 1990s, when SCOTUS then ruled exactly these kinds of age-verification systems to be unconstitutional for exactly the reason I mentioned above. So, is SCOTUS looking to undo this?

· Characteristically, some of the judges’ comments appeared to be clueless. Some of the conservative judges seemed to argue that porn had changed over time. That’s obviously true compared to Playboy in the 1960s…but less clear given the internet porn explosion of the 1990s. Prior SCOTUS legal precedent was set in the 1990s, not 1960s, so I’m not sure this line of thinking is terribly coherent.

· Some of the conservative justices also clearly bought into the idea that porn is harmful or porn addiction has surged, despite a lack of evidence for either belief (and porn addiction isn’t an actual clinical condition anyway. It’s very much a conservative political talking point).

· I think free speech advocates made a serious mistake in not finding some researchers to provide a pro bono amicus brief questioning these beliefs about “harm” due to porn. That would have been easily doable, but alas…it was not done.

· Unfortunately, a small group of researchers including Jonathan Haidt and Jean Twenge who, to my mind, have made lucrative careers out of stoking moral panics, did provide an amicus brief. Their coverage of the research is, frankly, ridiculous, but it went unchallenged.

· This is particularly the case where the justices themselves appeared to be making arguments that ought to come under strict scrutiny. However, this law survives only if a lesser standard is applied, as clear evidence for harm can’t be determined given the current state of the research.

· The courts appeared somewhat divided along ideological lines. That’s different from the past when conservative justice Scalia was reliably pro-free speech.

· The Biden administration stepped in and argued against accepting the law, appearing to suggest it should be kicked back to the lower courts to reconsider.

· I haven’t seen many real assessments yet of the oral arguments (Scotusblog hasn’t published one yet as I write this). My own assessment is that it’s definitely not a slam-dunk on the free-speech side. I’d be feeling more better were I on Texas’ side. Although just in…see a more optimistic take by lawyer Eric Goldman, who filed an amicus brief in the case. He knows what he’s talking about here, so I trust his evaluation. I hope he’s right and I’m wrong.

· If SCOTUS goes with the Biden administration’s suggestion, this would be an opportunity for free-speech advocates to correct their mistake in not addressing the research and perceptions of harm.

· Although this is sold as “protecting children”, we’re really talking mainly about adolescent boys, not 9-year-olds accidently stumbling into Pornhub when they meant to search for Bluey. As with the TikTok law, it’s not clear how much this will actually accomplish other than teach adolescents how to use VPNs which appears to be already happening.

· Further, some conservative advocates have been pretty open about using this as a foot-in-the-door for wider censorship of porn for adults too.

· I am worried that, although these two cases may appear reasonable on the surface, both will lead to further erosions of free speech protections.

· Nothing is forever, that’s important to remember. The past 50 years saw a remarkable increase in free speech protections in the US, protected by SCOTUS. We may now be looking at the inevitable reversal of some of that. Don’t get me wrong, I don’t think we’re approaching Fascist Germany or whatever (or even modern Germany), but any erosion in free speech, particularly when it’s motivated by fear and nonsense, has me worried.

It also impresses upon me that there are always tradeoffs with any version of SCOTUS, unless one is entirely on one side of the ideological divide. I think the conservative SCOTUS has been instrumental in course correcting progressive overreach in some areas, but now the piper is coming for payment on free speech, particularly around areas conservatives tend to have hysteria about. We should get a decision on the TikTok case anytime, but we’ll need to wait likely until June for the Texas porn case. As always, I welcome your input!