TikTok’s First Amendment Ruse

There is a concerning contingent of libertarian legal theorists who believe that none of the traditional notions of the First Amendment’s Free Speech Clause should matter. Typically, we have always understood the First Amendment’s underlying interest to be, as Justice Samuel Alito explained it, “fostering democratic self-government and furthering the search for truth.” Libertarians maintain the radical, and thoroughly constitutionally incorrect, view that our First Amendment decrees that corporate speech must trump an individual’s. 

It’s why this Supreme Court term is so important to get right. The Court must decide two cases—one concerning TikTok and the other about kids’ access to pornography— to determine whether our constitutional right to free speech is a bulwark or a weapon used by ideologues and Big Tech firms to degrade traditional American values, like protecting children and ensuring our national security. 

Chinese Dissidents Amicus: China’s Surveillance is Everywhere, including on TikTok

The People’s Republic of China government, led by the Chinese Communist Party, goes through extraordinary measures to maintain its authoritarian system. The CCP surveils its opponents and even “disappears” those with whom it disagrees—often using data obtained through such individuals’ use of PRC-controlled apps on their phones.

This draconian reality is why the Protecting Americans from Foreign Adversary Controlled Applications Act is a triumph for human rights and those that advocate for them. Its divestiture requirement surgically extracts the malignancy existing within TikTok— ByteDance. It is well documented that the CCP leverages technology to conduct its espionage and surveillance campaigns. Whether it is Huawei, DJI, or TikTok, their goal is the same: to threaten the safety of, and silence free expression by, anyone—in the PRC or around the world—who speaks out against the CCP’s policies and human rights abuses.

In this brief, we explain how TikTok under its current corporate structure is a clear instrument for the CCP to harass, target, and silence activists and dissidents in the U.S., the PRC, and around the world; and how the Act is a necessary step toward protecting the physical and digital safety of those who seek to illuminate the atrocities occurring in the PRC.

Thayer & Teachout Amicus: Foreign Divestment has a long constitutional history

During the Constitutional Convention, Alexander Hamilton warned, “Foreign powers … will interpose, the confusion will increase, and a dissolution of the Union ensue.” James Madison, Notes on the Constitutional Convention (June 18, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 285 (Max Farrand ed., 1911). The delegate Elbridge Gerry said, “Foreign powers will intermeddle in our affairs and spare no expense to influence them …. Everyone knows the vast sums laid out in Europe for secret services.”

The risk of foreign involvement in American policy was close to an obsession at the convention, and undergirded several provisions of the Constitution designed assuming that foreign powers would actively try to gain influence. In Federalist 68, Hamilton argued that the “most deadly adversaries of republican government” arose “chiefly” from “desire in foreign powers to gain an improper ascendant in our councils.” The Federalist No. 68 (Alexander Hamilton). The foundation of our Constitution, as well as sovereignty generally, lies in the understanding that we have the power to protect against foreign interference and that the exercise of such power is not incompatible with the First Amendment.

Elon Musk’s DOGE Is a Great Idea. Trump Should Make It Permanent

The Department of Governmental Efficiency (DOGE) represents a harbinger of deregulation for an incoming Trump administration, especially with Dogecoin enthusiast Elon Musk and Vivek Ramaswamy at the helm. Musk minced no words when describing the government as a “strangulation by overregulation.” And with the federal government issuing close to 4,500 new regulations each year, he ain’t wrong.

Environmental, historic preservation, and permitting rules in particular have become untethered from their stated aims. Their processes have become arduous and contorted, delaying everything from broadband deployment to space launches.

Regulations even gum up the government’s own programs. In 2021, Congress allocated $42 billion to the Department of Commerce to expand high-speed broadband to rural Americans. The results of this massive investment? Not one single deployment in more than three years. Worse, the earliest the program’s builds can take place is 2026. Why? According to Federal Communications Commission member Brendan Carr, a host of “regulations” and inconsistent agency processes have contributed to “a chaotic implementation environment” marked by “dysfunction” and “delays.”

How Congress Can Expand Broadband Access for Americans in Need

The fact that 42 million Americans live without broadband internet should shock our conscience in the digital age. Millions of adults cannot access remote education, learn of and apply for jobs, or conduct telehealth visits with their physician. Even worse, studies show that a lack of broadband can perpetuate the cycle of poverty.

That’s why Congress included a historic $65 billion investment in broadband infrastructure in the bipartisan Infrastructure Investment and Jobs Act in 2021. Part of that investment went to the Affordable Connectivity Program (ACP) administered by the Federal Communications Commission (FCC). The ACP provided low-income families and veterans with a $30 voucher to purchase broadband services and $100 to purchase computers or tablets.

And it was working! The ACP covered more than 22 million households, and roughly 20 percent of its enrollees did not have broadband before the ACP’s implementation.

There’s just one problem—the FCC, as of June 1, ran out of funds to keep the ACP going. This leaves millions of low-income families and veterans in the lurch if they want to continue using its services.

Congress Has a Chance to Rid Our Networks of Huawei Once and For All

China has attempted to invade every aspect of our communications systems. Whether it’s through routers with known vulnerabilities, drones, or dancing for teens apps, the Chinese government’s pursuits of espionage are relentless and unwavering.

This is especially true for our communications networks. National Security Agency Director Michael Hayden reported that Chinese telecommunications companies, Huawei and ZTE, served as proxies for espionage on behalf of the Chinese government as far back as 2010.

Under this backdrop, a bipartisan Congress passed the Secure and Trusted Communications Networks Act of 2019, which created the FCC’s Rip & Replace program. This reimbursement program at the Federal Communications Commission funds the removal of untrusted telecom equipment and services (including equipment produced by Huawei and ZTE). The program also provided funding to carriers to replace that equipment and services from trusted vendors, like Ericsson, Nokia, and Samsung. Hence, the “rip and replace.”

But Congress has only provided 39.5 percent of the funding needed to reimburse providers for replacing the untrusted equipment. This translates to only about a quarter  of Rip & Replace recipients, certifying that they have removed all of their unsecure equipment. This also means that there are at least 24,000 pieces of equipment from Huawei, ZTE, and other Chinese companies spread over 8,000 locations in our wireless telecom networks.

To Promote Smaller Innovators, Reform the PTAB

Congress created patent rights to entice inventors to create new products and expeditiously bring them to market. And for more than 230 years, patents have done just that. From the development of airplanes to the creation of mobile phones to the advancement of autonomous vehicles, patents have played an essential role in promoting U.S. technological leadership.

But that doesn’t mean that our patent system is without its pitfalls. Since its inception, large companies have tried to misuse the patent system to stifle their competition. RCA used it to kill the early versions of the television; Procter & Gamble used it to shut down new competitors to its hygiene products; and Apple uses it to maintain its extraordinary market dominance in the mobile ecosystem.

Driven by concerns that the patent system stifled smaller innovators, Congress in 2011 passed the America Invents Act (AIA), which created the Patent Trial and Appeal Board (PTAB) at the U.S. Patent Office. The quasi-judicial PTAB was billed as a cost-effective venue for small businesses to resolve patent claims without having to go to federal court. Ironically, large companies, particularly in the tech sector, have repeatedly availed themselves of the PTAB to invalidate the patents of smaller competitors.

Large tech companies accounted for a significant amount of PTAB petitions in 2021. Apple alone filed “hundreds of petitions” with the PTAB; 56% of which were “duplicative.” Mincing no words, Professor Adam Mossoff concluded in a report that the tech industry uses the PTAB as “a key tool in predatory infringement strategies by which these companies steal patented technologies from American inventors.”

To Fix the Digital Divide, The Great Can’t Be the Enemy of the Good

Given all of its successes, reauthorizing the Affordable Connectivity Program should be a no-brainer.

The ACP put consumers in the driver’s seat by allowing recipients to choose the best provider for them. In that same vein, the program permitted a wide array of ISPs, even satellite providers, to participate in the program. In contrast, Lifeline only permits the few that can meet the FCC’s archaic and overly burdensome “Eligible Telecommunications Carrier” standard. 

But here’s the rub—the FCC, as of June 1, 2024, ran out of funds to keep the ACP going. This means that all of the gains we made in narrowing the digital divide can be effectively undone, leaving millions of low-income families and veterans in the lurch if they want to continue using the services. While some providers have agreed to handle the full financial burden, but they can only do that for so long before the monetary strain becomes untenable.