Is a "we're Communists!" push alert really what saves TikTok?
On the power and limits of disclosure.
An irony of democratic life is that lack of disclosure is a deadly civic sin, and yet our track record on remediation has a dog-catches-car quality at best.
You didn’t tell people you knew your company’s cigarettes are addictive cancer machines? Oops. Didn’t let on that burning your fossil fuels contributes to a global greenhouse effect? Seems bad. Lie constantly about everything, including an illegal hush payment to cover up an affair with an adult film performer during a presidential campaign? A jury will convict. And yet people still smoke, drive low-mileage trucks to their office jobs and re-elect Donald Trump. Coping with the chasms between knowledge and action is the lifelong character-building exercise that makes you an American.
I’ve been thinking about the merits and limits of disclosure as TikTok makes a final legal heave to stave off Congress’ Jan. 19 divest-or-ban deadline. The U.S. Supreme Court has just agreed to agreed to hear emergency arguments on Jan. 10.
In TikTok’s emergency appeal to the Supreme Court, I was fascinated by one of the company’s rebuttals to a lower court’s finding that the First Amendment’s speech protections don’t override concerns the Chinese government could alter the TikTok algorithm to influence Americans:
The D.C. Circuit gave no explanation why it would be inadequate, for example, to include a conspicuous warning on the TikTok platform telling users what the Government told the court: “[The Government believes] there is a risk that [China] may coerce … TikTok to covertly manipulate the information received by … Americans.”
Could you imagine cracking open your TikTok app on Jan. 20th, as Trump is being sworn into office, and seeing a cigarette-carton notification that the People’s Republic of China might be showing you a bunch of infringing movie clips with AI summaries in order to turn you into an unwitting communist agent?
To be clear, Applicants believe that such a warning would be unwarranted in this context. But the key point for now is that this much-less-restrictive alternative forecloses the Government from justifying the far-more-draconian remedy of banning Applicants from operating TikTok at all.
To repeat, if Americans, duly informed of the alleged risks of “covert” content manipulation, choose to continue viewing content on TikTok with their eyes wide open, the First Amendment entrusts them with making that choice, free from the Government’s censorship.
On one hand, I sympathize with TikTok’s lawyers fighting for the app’s life. They’re floating a haha-we’re-not-seriously-suggesting-this-…unless? “we’re Communists!” push alert to the Supreme Court if that’s what staves off regulators who think manipulating algorithms is only okay if you’re American. While I love and require the First Amendment, I have a healthy skepticism about the ineluctability of any civil right that can be wanded away under calm conditions by five Yale-educated wizards who came back from the Federalist Society ski trip in a bad mood. If anything is going to doom TikTok, it’s that creators aren’t smashing windows in the streets as Google, Meta, Amazon and Microsoft threaten to shut down the internet in solidarity. Everyone knows a ban is looming. Where are the protests? Anyone who knows the answer already understands the limits of disclosure.