TikTok’s claim that the First Amendment somehow prevents Congress from requiring TikTok to divest its ties to the CCP is incorrect. The law is very clear on this. Specifically, the Supreme Court draws a distinction between laws based on the content of speech and those based on conduct instead. Laws that fall into the first category almost always violate the First Amendment. But those that fall into the second category—by regulating non-expressive conduct—do not. Here, this bill is not based on the content of TikTok's protected speech—or on any of the lawful content that TikTok users want to share or receive. Instead, the bill takes action based on TikTok's illicit conduct—namely, the concrete threat to national security that TikTok poses as evidenced by its pattern of illicit actions—conduct that is not protected by the First Amendment. The Supreme Court's decision in Arcara v. Cloud Books offers an analogous case in point. There, the government shut down a bookstore because the owner used the facility to engage in illegal conduct. The owner argued that, notwithstanding the illegal conduct, the government could not close the store because the First Amendment protected the selling and purchasing of books. While the Court recognized that closing the store would have an incidental burden on protected speech, it upheld the closure because the government acted based on the owner's unlawful conduct, not based on the content of any speech. So too here. The First Amendment does not protect espionage, and the Constitution does not require the government to allow TikTok's national security threat to persist simply because TikTok also enables Americans to use the platform for protected speech. *** And to be clear, H.R. 7521 presents an even easier case from a First Amendment perspective because, contrary to TikTok’s claim, the bill would enable Americans to continue using TikTok, provided that it genuinely cuts ties with the CCP. https://bird.makeup/@tiktokpolicy/1765095354633015412
See Tweet