Earlier this month, the U.S. Court of Appeals for the D.C. Circuit found that the law to ban TikTok in the United States did not violate Americans’ First Amendment rights. Never before has Congress taken the extraordinary step of effectively banning a platform for communication, let alone one used by half the country.
The First Amendment requires an explanation of why such a dramatic restriction of the right to speak and receive information is necessary, and compelling evidence to support it. The government failed to provide either.
What little Congress did place on the public record includes statements from lawmakers raising diffuse concerns about national security and, more disturbingly, their desire to control the American public’s information diet in a way that strikes at the heart of the First Amendment.
Today, FIRE and a coalition of organizations filed an amicus brief urging the Supreme Court to reverse the decision.
FIRE is proud to be joined by the following organizations and individuals for today’s brief:
The Institute for Justice
Reason Foundation
The Future of Free Speech
The Woodhull Freedom Foundation
The First Amendment Lawyers Association
Stop Child Predators
The Pelican Institute for Public Policy
CJ Pearson
Will Creeley, legal director at FIRE: “The government doesn’t have the power to pull the plug on TikTok without demonstrating exactly why such a dramatic step is absolutely necessary. It has failed to publicly lay out the case for cutting off an avenue of expression that 170 million of us use. The First Amendment requires a lot more than just the government’s say-so. Fifty years after the publication of the Pentagon Papers, Americans understand that invoking ‘national security’ doesn’t grant the government free rein to censor. By failing to properly hold the government to its constitutionally required burden of proof, the court’s decision erodes First Amendment rights now and in the future.”
Jacob Mchangama, executive director of The Future of Free Speech and senior fellow at FIRE: “For decades, the United States has been the global gold standard for free speech protections. The unprecedented bipartisan push to effectively shut down TikTok — an online platform where millions exercise their right to free expression and access information — represents a troubling shift from this proud legacy. If enacted, this ban would make the U.S. the first free and open democracy to impose such sweeping restrictions, drawing uncomfortable parallels with authoritarian regimes like Somalia, Iran, and Afghanistan, which use similar measures to suppress dissent and control their populations. This is not just about a single app; it is a litmus test for the resilience of First Amendment principles in the digital age. The Supreme Court must ensure that Congress is held to the highest standard before permitting actions of such profound consequence. A TikTok ban risks setting a dangerous precedent that undermines the very freedoms distinguishing democracies from autocracies.”
The D.C. Circuit’s decision justifies the Act’s sweeping censorship by invoking “free speech fundamentals.” In so doing, it confuses the First Amendment values at stake, and sacrifices our constitutional tradition of debate and dialogue for enforced silence. The D.C. Circuit’s misguided reasoning is sharply at odds with longstanding First Amendment precedent, violating the constitutional protections it claims to preserve. Instead of following the instructive example set by Taiwan, which has eschewed a blanket TikTok ban in favor of robust counterspeech, the D.C. Circuit’s logic echoes the authoritarianism of North Korea and Iran.
Today, FIRE filed an amicus curiae (“friend of the court”) brief in support of TikTok’s emergency application for an injunction pending review of a law that would force it to shut down absent divestiture of Chinese ownership. The Summary of Argument from the brief, on which FIRE is joined by the Institute for Justice and Reason Foundation, explains the law’s grave threat to free speech.
The nationwide ban on TikTok is the first time in history our government has proposed — or a court approved — prohibiting an entire medium of communications. The law imposes a prior restraint, and restricts speech based on both its content and viewpoint. As such, if not unconstitutional per se, it should be subject to the highest level of First Amendment scrutiny. Given the grave consequences, both for free speech doctrine and for the 170 million Americans who use TikTok to communicate with one another, this Court should at least hit the “pause button” before allowing such a drastic policy to go into effect.
The U.S. Court of Appeals for the District of Columbia Circuit correctly recognized the Protecting Americans from Foreign Adversary Controlled Applications Act, (“the Act”) as a direct regulation of speech. Exercising original and exclusive jurisdiction over TikTok’s constitutional challenge, the court held the Act “implicates the First Amendment and is subject to heightened scrutiny,” and assumed but did not decide strict scrutiny was warranted. . However, the court held the Act “clears this high bar,” granting deference to the government’s characterization of alleged national security concerns to conclude the Act was “carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the [People’s Republic of China].”
Although the appellate panel was correct that the Act should be subject to the highest level of First Amendment scrutiny, it failed to actually hold the government to its burden of proof, and deferred too readily to unsupported assertions of a national security threat.
Congress has not met the heavy constitutional burden the First Amendment demands when regulating speech, let alone banning an entire expressive platform. No published legislative findings or other official public records attempt to explain or substantiate why the Act’s severe encroachment on millions of Americans’ right to speak and to receive information is necessary to address a real and serious problem. Nor was there any showing the ban would effectively address the asserted risks.
The proffered evidence of the law’s purpose reveals illegitimate intent to suppress disfavored speech and generalized concerns about data privacy and national security. These concerns fall far short of satisfying strict scrutiny, and the court’s extreme deference to governmental conjecture is unwarranted, misguided, and dangerous. Nor is the Act narrowly tailored to any compelling or substantial government interest, as the First Amendment requires.
Constitutional intrusions of this unprecedented magnitude demand this Court’s full consideration before they take effect. This Court should grant Petitioners’ emergency application for an injunction pending review.
This year, FIRE launched the Free Speech Dispatch, a regular series covering new and continuing censorship trends and challenges around the world. Our goal is to help readers better understand the global context of free expression. The previousentries covered policing of online speech, assassination attempts on U.S. soil, and more. Want to make sure you don’t miss an update? Sign up for our newsletter.
One step forward, two steps back for Australia
(Mojahid Mottakin / Shutterstock.com)
Communications Minister Michelle Rowland confirmed there was “no pathway to legislate” the government’s controversial plans to require platforms to moderate “misinformation.” In other words, the legislation is effectively dead. The bill, which I covered in a previous Dispatch, defined misinformation as “reasonably verifiable as false, misleading, or deceptive” and “likely to cause or contribute to serious harm.” There are many free speech concerns that arise when the government grants itself the power to require moderation of speech it deems untrue.
But while Australia’s troubling misinformation legislation failed, another worrying bill sailed forward. Late last month, Australia passed the Social Media Minimum Age bill, legislation banning social media for children under the age of 16 that does not even allow for parent permission, despite the myriad threats it poses to free speech and privacy.
Australia isn’t the only country considering measures limiting youth access to social media. Here in the United States, the Kids Online Safety Act — which suffers from numerous First Amendment pitfalls — risks passage in Congress. Advocates and legislators have even pushed for bills similar to Australia’s that would wholesale stop American teens from accessing social media sites.
UK adds blasphemy to its mounting free speech woes
WATCH VIDEO: Free nations don’t have blasphemy laws. The UK needs to tread carefully.
Once again, the UK is making headlines — the bad kind. The reason this time? Late last month, Member of Parliament Tahir Ali called on UK Prime Minister Keir Starmer to lead “measures to prohibit the desecration of all religious texts and the prophets of the Abrahamic religions.”
There’s a term for that: a blasphemy law.
The UK’s relationship with free expression is currently in a free fall and the last thing it needs right now is more forms of expression to police. Blasphemy laws are often packaged and promoted in language about protecting the powerless but, as countlessrecentarrestsandprosecutionsmakeclear, are regularly wielded as a tool to preserve power, whether religious, political, or somewhere in between.
Ali’s advocacy of a blasphemy law is deeply wrong-headed, but he is far from the only one to think it might be a worthy venture. Last year, in response to a spate of Quran burning incidents, the United Nations Human Rights Council passed a resolution encouraging more countries to “address, prevent and prosecute acts and advocacy of religious hatred” — a nebulous concept prone to abuse — and months later, Denmark enacted such a law.
That wasn’t even the only blasphemy-related story to emerge this month out of the UK. In November, the Advertising Standards Authority banned comedian Fern Brady from using an advertisement for her stand-up tour that comically depicted Brady in place of the Virgin Mary in a riff on Alonso Cano’s 17th century painting, “St. Bernard and the Virgin.” In its decision, the ASA alleged that the image could cause “serious offence” to Christians, and directed her to avoid causing insult “on the grounds of religions” again.
An investigation from Legal Initiatives for Vietnam discovered a shockingly high 90% compliance rate from companies including Meta, Google, and TikTok in response to government requests for content moderation, often of material critical of the government. Meta even utilizes a secret list of Vietnamese officials its users aren’t allowed to criticize.
Pakistan appears to be the first country to block the relatively new social media platform Bluesky, but that’s no great surprise given Pakistan’s frequent internet censorship efforts.
A Citizen Lab report found that books “largely related to LGBTIQ, the occult, erotica, Christianity, and health and wellness” were the top items Amazon restricts shipments of to certain countries like Saudi Arabia and the United Arab Emirates. Troublingly, Amazon “uses varying error messages such as by conveying that an item is temporarily out of stock” rather than stating upfront that the books are not available due to local censorship rules.
If you’re in Kyrgyzstan, watch what you say on the internet. In late November, the country’s parliament approved a bill that will issue fines for online “insult and libel.”
Russian communications authority Roskomnadzor is reportedly beefing up its efforts to cut off foreign internet access — including VPNs — in regions including Chechnya as it’s “testing its own sovereign internet it can fully control.”
The Parliament of Malaysia passed a worrying Online Safety Bill handing over to authorities broad new power to combat “harmful” content on the internet, including the ability to search and seize material from service providers without a warrant. “Freedom of speech does exist,” Communications Minister Fahmi Fadzil said, “but we are also given power through Parliament to impose any necessary restrictions for the safety of the public.”
South Korea’s fleeting martial law decree threatened a free speech disaster
South Korea President Yoon Suk Yeol in 2023 (Gints Ivuskans / Shutterstock.com)
On Dec. 3, President Yoon Suk Yeol shocked the world by declaring martial law in South Korea under the guise of protecting “liberal democracy from the threat of overthrowing the regime . . . by anti-state forces active within the Republic of Korea.”
The decree banned, among other things, “fake news, public opinion manipulation, and false propaganda” as well as rallies and “all political activities.” All media would also be “subject to the control of the Martial Law Command.” Alleged violators of these and other provisions risked being “arrested, detained, and searched without a warrant.”
Hours later, Yoon reversed course in response to massive protests and a parliamentary veto.
Speech-related arrests and sentencing from Hong Kong to Brazil
“Righteous people live, villains must die.” Elsa Wu, the mother of a Hong Kong activist recently sentenced to four years in prison, was arrested “on suspicion of disorderly conduct” for holding a banner with this message outside of a courthouse in November.
Indian journalist Mohammed Zubair has been charged with “endangering sovereignty, unity and integrity of India” for criticizing, and posting video of, comments a well-known Hindu priest made about the Prophet Muhammad. “It’s a classic case of shooting the messenger,” one of Zubair’s colleagues said. “It’s a witch hunt.”
Shortly after Zubair’s arrest, and on a similar basis, Indian police raided the offices of the Association for Protection of Civil Rights on charges including “promoting enmity.” The raid was reportedly based on the group’s social media posts highlighting abuses against Muslims in India.
Thai human rights lawyer Arnon Nampa, already imprisoned on similar charges, was sentenced this month to another two years in prison “over a 2020 social media post in which he allegedly criticised the king’s authority.” In total, he will serve over 16 years in prison and is one of many Thai activists punished for insulting or criticizing the country’s monarchy. Additionally, three Thai activists were charged with “contempt of court” for protesting a 2022 ruling from the Constitutional Court about the prime minister’s term limit.
Dozens of protesters have been arrested after demonstrating against Prime Minister Irakli Kobakhidze’s announcement that Georgia will postpone its efforts to join the European Union until 2028.
A Brazilian court has issued its longest-ever sentence for racism — nearly nine years in prison — over a woman’s 2017 social media video about a Malawian child adopted by two white Brazilian celebrities. The woman, Day McCarthy, called the child a “monkey” in a video and complained that “fake people and suck-ups” criticize McCarthy, “who identifies as half Black,” for not having “blue eyes and straight hair and a beautiful nose” but compliment the child’s appearance. McCarthy now lives in France and it’s unclear if she will serve the sentence.
Iran releases two dissidents but expands cruel crackdown on forced veiling critics
Last week, a wide-ranging new law went into effect that will further punish women who transgress Iran’s deeply oppressive mandatory hijab laws. Punishments range from flogging to long prison terms to travel bans and even death for “nudity, indecency, unveiling and bad dressing” and related crimes.
But amidst this awful development, there were some bright spots. Iranian cartoonist Atena Farghadani was released after serving eight months in prison on charges of “propaganda against the state” and dissident rapper Toomaj Salehi was also released after being held for 753 days over his support of women’s rights protests in the country. At one point, Salehi had been sentenced to death before the ruling was overturned by Iran’s Supreme Court.
Tiananmen joke grounds ‘Family Guy’ episode from in-flight entertainment
WATCH VIDEO: In the first episode of the TV sitcom “Family Guy,” Peter Griffin briefly stands in front of the tanks at Tiananmen Square. (YouTube.com)
Hong Kong airline Cathay Pacific is the latest example of a corporation eager to comply with the Chinese government’s political sensibilities after a passenger complained about an in-flight Family Guy episode that jokingly referenced Tank Man and the Tiananmen Square.
“We emphasise that the content of the programme does not represent Cathay Pacific’s standpoint, and have immediately arranged to have the programme removed as soon as possible,” the airline wrote in a statement earlier this month. It remains unclear what, exactly, is the company’s “standpoint” on the Tiananmen Square killings.
Mostly, but not all, bad news in arts and media:
Bangladesh’s Press Information Department recalled the accreditation of 167 journalists in the country, a “broad and sweeping cancellation” that has “left the journalist community alarmed.”
Haiti’s telecommunications authority CONATEL suspended evening show Radio Mega after a wanted gang leader called into the show “claiming that he was offered a large bribe by a member of the ruling Presidential Transition Council to negotiate peace with the gangs.”
After a lengthy 14 years, broadcaster Luisito “Chito” Berjit Jr. was finally acquitted after a Filipino court found there was insufficient evidence to find him guilty of libel over his reporting about alleged government corruption.
A report this month from the Hong Kong Public Opinion Research Institute found that about two-thirds of respondents “perceived news outlets to have practiced self-censorship,” a record high result since the polling began in 1997.
French media regulatory authority Arcom reportedly fined a conservative TV station €100,000 for failure to uphold its “obligation of honesty and rigour in the presentation and processing of information” after it showed an image calling abortion the world’s leading cause of death during a Catholic program.
Kuwait has reportedly banned the release of “Wicked” within the country “amid reports that the film includes a gay character, which led to its prohibition.” The musical joins a long list of films, including “Barbie” and “Thor: Love and Thunder,” to face local bans over inclusions of LGBT themes or characters.
Belarusian authorities arrested seven reporters from an online independent news outlet for “supporting extremist activities.” The president of the Belarusian Association of Journalists said it “looks like the authorities have decided to arrest all journalists they suspect of being disloyal ahead of January’s presidential vote.”
If you expected to make it through this year without a censorship controversy from the divisive Australian Olympian break-dancer Raygun, think again. Her lawyers reportedly threatened legal action against the event space hosting comedian Steph Broadbridge’s show “Raygun: The Musical.” Broadbridge says Raygun’s lawyers “trademarked the poster used to advertise the musical” and “banned her from replicating the iconic kangaroo hop.”
