The Difference Between TikTok and Free Expression
The algorithmic manipulation of users’ attention is not the same thing as actual human speech.
In ruling Friday on the future of the social-media app TikTok, the Supreme Court understood it was dealing with a novel issue. “We are conscious that the cases before us involve new technologies with transformative capabilities,” the justices declared in a per curiam opinion. “This challenging new context counsels caution on our part.” When the nation’s Founders enshrined freedom of speech in the First Amendment, they couldn’t have imagined phone apps that amplify information around the world almost instantaneously—much less one controlled by a foreign power, as TikTok is, and capable of tracking the movements, relationships, and behaviors of millions of Americans in real time.
The unanimous decision upheld a federal law intended to force the sale or shutdown of Chinese-controlled TikTok, and the justices’ arguments focused on that platform alone. But a window has been opened for acknowledging that, as a matter of law, protecting human expression is qualitatively different from enabling algorithmic manipulation of human attention.
Platforms such as TikTok and its American-founded counterparts Facebook, Instagram, and X aren’t mere communication channels; they’re sophisticated artificial-intelligence systems that shape, amplify, and suppress human expression based on proprietary algorithms optimized for engagement and data collection. TikTok’s appeal lies in showing users an endless stream of content from strangers algorithmically selected for its ability to keep people scrolling. The platform’s algorithm learns and adapts, creating rapid feedback loops in which even factually inaccurate information can quickly spread around the world—a mechanism fundamentally different from traditional human-to-human communication. Meta and X, which have copied some features of TikTok, raise similar concerns about dangerous virality. But TikTok’s control by a hostile foreign power introduces an additional variable.
The ruling zeroed in on TikTok’s data collection as a justification for shutting the platform down. In doing so, the Court took the easy way out: The ruling did not deeply explore larger questions about the extent to which the First Amendment protects algorithmic amplification.
Critics of the TikTok ban, including prominent tech and free-speech advocates, had argued that any government restriction on social-media platforms represents a dangerous precedent. But we already accept that the First Amendment doesn’t protect all forms of expression equally; commercial speech, for instance, receives less protection than political speech. Congress can protect human expression while still regulating the automated systems that amplify, suppress, and transform that expression for profit.
The national-security implications of algorithmic manipulation are already evident. Analysis by the Alliance for Securing Democracy concluded that TikTok’s algorithm was manipulated by Russia to promote a pro-Moscow narrative about the invasion of Ukraine. Americans are, of course, free to share pro-Russia or pro-China narratives on other apps, but a platform controlled by Beijing is not entitled to the presumption that its intentions are benign. (Such a platform certainly doesn’t deserve the protection of the law known as Section 230, which exempts tech platforms from civil liability for the content they publish.)
These concerns transcend partisan divisions. Both Senator Marco Rubio, the Republican whom Donald Trump has tapped to be secretary of state, and Senator Mark Warner, a Democrat, have highlighted how social-media algorithms can be weaponized to influence public opinion. As Warner noted in a recent Senate Commerce Committee meeting, “While the exploitation of U.S. communication platforms by adversaries continues to be a serious issue, at the end of the day, our platforms are at least independent businesses. They do not have a vested interest in undermining our basic democratic system.”
The TikTok ban took effect today, and the app has gone dark for U.S. users. What happens next is unclear: The Biden administration will not enforce the law in its waning hours in office, and Trump, who was critical of TikTok but has more recently warmed to it, may play for more time. The law in question leaves open the possibility that TikTok’s Chinese owners could sell it off, an option that officials in Beijing have long rejected. In theory, many ownership structures are possible, some of which might have more salutary effects on our virtual public square than any current platform giant does. Project Liberty’s People’s Bid for TikTok proposes a novel ownership model that aims to preserve the platform’s innovative features while giving users greater control. The proposal imagines a hybrid structure where content moderation remains independent and user-driven, while algorithmic amplification serves public-interest metrics rather than pure engagement, and, crucially, users own their personal data.
Another possibility widely discussed in recent weeks is that TikTok could be sold to Elon Musk, whose business interests in China would leave the platform subject to at least Beijing’s soft power. Such a move would leave two men, Musk and the Facebook founder Mark Zuckerberg, dominant in the social-media world—a concentration of ownership that carries its own dangers to free expression. Still, even that would be preferable to the status quo before the law took effect.
Courts have always faced challenges applying enduring constitutional principles to new technologies, but the rise of black-box algorithms in shaping public discourse presents many new questions that will take years for American courts and lawmakers to fully address. But the Supreme Court’s TikTok decision cuts through this complexity with a crucial message: We need not solve every puzzle of AI governance to recognize and respond to clear threats. We can act decisively even as we continue wrestling with the harder questions. Acknowledging complexity need not paralyze us in the face of obvious dangers.