The Supreme Court’s Decision on TikTok Is a Setback for the First Amendment and the Open Internet, Says OTI

After hearing arguments last week in a case challenging the law requiring ByteDance to either sell TikTok or see the app banned, the U.S. Supreme Court decided today to uphold that law. In response to the decision, the Open Technology Institute (OTI), a New America program fostering equitable access to digital technology and its benefits, issued the following statement from Lilian Coral, Head of the Open Technology Institute and Vice President of Technology and Democracy programs at New America.

The Open Technology Institute was founded on the vision of a free and open internet. We believe the Supreme Court’s decision today to uphold the Protecting Americans from Foreign Adversary Controlled Applications Act is a setback for Americans’ First Amendment rights and the United States’ role as a defender of the open internet.

From the beginning, this case has focused on the ability of the U.S. government to safeguard national security and protect Americans’ data from access by a foreign government. We share the Court’s and Congress’s concerns about Americans’ data privacy and how foreign governments, and companies alike, may use a range of social media applications—including TikTok—to run online influence operations and spread disinformation. However, these national security concerns must be balanced against the right to freedom of expression that all Americans are guaranteed. This fundamental principle dictates that any attempts to ban digital sites or applications, and thereby restrict how Americans choose to express themselves, must clear a high constitutional bar. With this ruling, the Supreme Court privileges a relatively vague invocation of national security and downplays the extent to which the law serves to restrict speech. We fear the decision will echo beyond its implications for legal doctrine.

The law’s blunt approach of a divest-or-ban requirement suppresses speech and may divert TikTok users to both U.S. and non-U.S. apps. The law will have three serious consequences. First, the law raises serious free expression and First Amendment concerns that represent a troubling trend away from longstanding U.S. policy in favor of a largely open internet. Second, the threats stemming from influence operations, privacy issues, and data security risks will continue in the social media ecosystem—regardless of the ban. Third, this approach—which looks much like American protectionism in the form of technonationalism—could embolden governments beyond China and Russia to take similar stances and ban American applications and services.

Many of the concerns invoked in this case aren’t unique to TikTok, and forcing a TikTok ban won’t address them. The U.S. still lacks comprehensive federal privacy legislation, more targeted legislation reining in data brokers, or laws requiring meaningful algorithmic accountability—each of which would improve the state of social media and its impact on our democracy.

We believe in an open and safe internet and in the right of every American to access digital technology and its benefits using the tools of their choice. The Court’s willingness to acquiesce in the government’s invocation of national security to force a shut down of a massive speech platform in the United States imperils speech rights worldwide. We are not naive about the privacy and influence operations threats at issue in this case, but today’s decision marks a major setback to the vision of an open and interoperable global internet.

For more information, please contact Emily Tavenner, Director, New America’s Technology and Democracy programs, tavenner@newamerica.org.

About Lilian Coral

Lilian Coral, Head of the Open Technology Institute and Vice President of New America’s Technology and Democracy programs, where she oversees New America’s work on a broad range of issues at the intersection of technology and democracy at a time at which AI challenges, digital equity, privacy concerns, online free expression, and other key tech policy issues are at the forefront of U.S. public debate.

About the Open Technology Institute

The Open Technology Institute (OTI) works at the intersection of technology and policy to ensure that every community has equitable access to digital technology and its benefits. We promote universal access to communications technologies that are both open and secure, using a multidisciplinary approach that brings together advocates, researchers, organizers, and innovators. To learn more, please visit us online at www.newamerica.org/oti and on X @OTI.

About New America

New America is dedicated to renewing the promise of America, bringing us closer to our nation’s highest ideals. We’re a different kind of think tank: one dedicated to public problem solving. Our team of visionary researchers, changemakers, technologists, and storytellers study and seize the opportunities presented by dramatic social and technological change. We search for powerful ideas, wherever they are, and collaborate with civic innovators around the country to develop evidence-based solutions. To learn more, please visit us online at www.newamerica.org or follow us on X @NewAmerica.