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Free speech is not a "get out of jail free card"

I own and use a watch that goes tiktok – a present from my dad when I graduated from college. But no one has my watch in mind when discussing whether to ban or regulate TikTok. There is confusion, however, about what the First Amendment does or doesn’t, should or shouldn’t, be taken to mean. That’s partly because the issue is being posed very narrowly. Narrowing discussion to a particular media outlet raises all kinds of questions and fears. Can government ban Fox News or the New York Times?

Issues often look different when one takes a broader view. There have been periods in which the FCC wouldn’t license foreign owned radio and television stations. And the FCC had a “fairness doctrine” which required that radio and television stations broadcast competing points of view about controversial issues of public importance. There was controversy about whether that was consistent with the First Amendment but what really killed it was a broadcaster who said that the only thing controversial about its award-winning program were the unstated inferences that the complaining party wanted to object to. By the time the doctrine was repealed, it seemed relatively useless, though I’d like to have it back now that the issue has become counter-factual nonsense.

More recently, the European Union developed a privacy directive that prohibited the transfer of personal information out of Europe unless consistent with European rules, and later replaced it with a still stronger law. American companies had a choice between staying out of the European market or entering an agreement with the European authorities about how they would protect the privacy of European customers – where privacy is much broader than it is here. That wasn’t discrimination against American companies; it was requiring that American companies respect European law.

National security may be enough of a justification, but the TikTok issue looks different if the question is how foreign companies can guarantee that they will not transfer information about Americans out of the US, or whether other countries, like China, must abide by the same rules for American companies that they want from us.

The biggest problem is that Congress has been unwilling to strengthen American privacy law. American courts long ago struggled with the legality of tracking what we do online. With few exceptions, courts accepted tracking and treated data about us as the property of the media companies. Those decisions had little to do with the First Amendment but left companies with an enormous body of information about us, and left us with little privacy. That lack of generic restrictions on what companies can gather or share, put us in the position of wanting to impose restrictions on TikTok that are not applied to other companies.

Congress could impose many restrictions on TikTok and similar companies that would pose no constitutional problems. But narrowing the issue to TikTok makes the issue constitutionally harder to justify. So it would be better if Congress could deal with the underlying problems, rather than narrowing the issue to TikTok.

I want to end with another First Amendment issue. Trump to the contrary notwithstanding, it does not and has never meant you can say anything about anything. Libel, fraud, threats and intimidation have never been legal. The fact that they depend on words is not a get out of jail free card to libel, defraud, misrepresent, threaten or intimidate others, ignore required notices and disclosures, or to ignore rules designed to protect jurors.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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