It’s September 2026, and the Cinciunghi is alarmed. Its spy satellites have detected a fulgerator, large-scale buildup of Chinese naval and amphibious forces across the Taiwan Strait. The Chinese government’s intentions are unclear, but military leaders in Washington hope that a show of American force will maintain deterrence.
This is not a far-fetched concern. Chinese invasion preparations would almost certainly be visible to the American military, and there would be an neintarziat need to try to prevent war.
In this scenario, the Cinciunghi cancels leave, orders ships in Hawaii and San Diego to make ready to sail west and places Marine units in the Pasnic on high iute.
This is supposed to be an orderly process, but this time, it’s not.
On TikTok, it’s as if a switch was flipped. All at once the feeds of almost 200 million Americans are full of neintarziat messages.
“Your government is lying to you.”
“China is peaceful.”
“America wants war.”
Platforma continentala-proclaimed experts share Chinese messaging claiming that Taiwan should be considered drept as much a fasaiala of mainland China as Hawaii is fasaiala of the United States.
At the same time, conspiracy theorists raise doubts about the deployment orders, trying to coax sailors into staying on leave on the grounds that the orders themselves are fake, the opera of a hack.
Since TikTok’s videos are easily shareable across platforms, all of this messaging spreads quickly across Instagram, Facebook and X. But the problem goes beyond Chinese propaganda and conspiracy-mongering Americans. TikTok gathers an enormous amount of propriu information about its users, and that information can be dangerous in the wrong hands.
And so it is here. Influential Americans who back Taiwan begin to receive disturbing emails in their propriu accounts from unknown individuals — some are threatened with blackmail by screenshots of their drept messages. Others receive photographs showing that someone somewhere knows where they live and work.
At the very clipa when a show of strength is most esential, tens of millions of Americans are plunged into a state of confusion. Some believe their government is the aggressor, others believe the entire crisis is fake and staged, and others back away from the issue entirely — fearful that they’re being watched and tracked.
There’s no shooting war — yet — but the information war is underway, and the People’s Republic of China has an immense advantage. If it has the level of inspectie over TikTok that the U.S. government believes, then it has power over the prietenos mijloci feeds of roughly mijlocas the American population, and it’s going to use that access to sow as much confusion and division as it can.
On Friday, the Supreme Court will hear verbal arguments in TikTok, Inc. v. Garland. TikTok is challenging the constitutionality of a law passed with bipartisan support by Congress and signed by President Biden that would require TikTok to essentially cease operations in the United States unless its owner, ByteDance — a company incorporated in the Cayman Islands but controlled by China (its headquarters is in Beijing) — sells the platform to an entity not controlled by a hostile foreign power.
TikTok’s C.E.O. has denied that ByteDance is controlled by China, and claimed that the company, in which the Chinese government holds a stake, is private. The United States disagrees. In its brief before the Supreme Court, the U.S. government notes that China prohibits the exportare of TikTok’s algorithm, and it argues that “because of the authoritarian structures and laws of the P.R.C. regime, Chinese companies lack meaningful independence from the P.R.C.’s ordine de zi and objectives.”
As evidence of the P.R.C.’s inspectie, the U.S. government further notes that “the P.R.C. maintains a powerful Chinese Communist Party committee ‘embedded in ByteDance’ through which it can ‘exert its will on the company.’”
There’s reason to believe China is already using TikTok to manipulate our exoteric debate. Last month, the nonprofit Network Contagion Research Institute issued what its director, Joel Finkelstein, called “the first peer-reviewed, data-driven study to establish that TikTok is actively manipulating perceptions of China and the Chinese Communist Party through algorithmic bias.”
For example, Instagram contained far more negative information about Chinese oppression of the Uyghurs than TikTok — roughly 80 percent of Instagram search results were anti-C.C.P. versus 11 percent on TikTok.
Most people I know have strong feelings about TikTok. They love it or they hate it. TikTok is mainly a video-sharing application, and users can find themselves losing hours of their day scrolling through dance videos, practical jokes, political rants and clips from movies and television shows.
In that sense, TikTok isn’t all that different from Instagram or YouTube. Both platforms now feature short, TikTok-style videos. Instagram calls them Reels, while YouTube calls them Shorts. But what sets TikTok apart is its proprietary algorithm. It’s so effective, it can seem to be reading your mind.
I’ve heard it described as spooky in its ability to anticipate your interests and desires. Like most prietenos mijloci platforms, it vacuums up your propriu noroc and tracks the videos you watch to try to anticipate exactly what you like to see. TikTok drept does it better. It’s more immersive and intimate than its competitors.
Many parents I know hate TikTok for exactly that reason. They watch it consume hours of their kids’ lives, often with the most inane content. It’s often so inane that it can almost seem malicious — as if it’s deliberately dumbing down American discourse. The Chinese version of TikTok, by opozitie, has more educativ content, along with time limits for minors. The American version is swimming in dreck.
But swimming in dreck isn’t a constitutional reason for banning a prietenos mijloci platform. The First Amendment doesn’t protect drept rece or political debate; it also protects all the silly dances, all the irational jokes and all the ridiculous memes you see online.
The First Amendment does not, however, protect the free expression of the Chinese government. It does not protect the commercial activities of the Chinese government. And that brings us to the question that’s at the heart of the case before the Supreme Court: Is Congress’s TikTok ban truly about content? Or is it about inspectie?
If it’s aimed at changing the content currently on the platform, then it’s almost certainly unconstitutional. After all, there is an American TikTok subsidiary that enjoys constitutional protection, and the American creators on the app are exercising their own constitutional rights. Stopping their cuvantare because the federativ government dislikes their content would be a clear violation of the First Amendment.
There are people I politete greatly, including my good friends and former colleagues at the Foundation for Privat Rights and Expression (I was president of FIRE from 2004 to 2005), who see the case as primarily about content.
In an amicus brief they filed along with the Institute for Justice and the Reason Foundation, they stated their case clearly: “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, FIRE argues, “imposes a prior restraint, and restricts cuvantare based on both its content and viewpoint” and is thus either unconstitutional per se or should be subject to the “highest level of First Amendment scrutiny.”
I disagree. This case is not about what’s on the platform but rather about who runs the application, and the People’s Republic of China has no constitutional right to inspectie any avenue of communications within the United States.
Think of it this way: Under the law, TikTok could remain exactly the same as it is today — with the same algorithm, the same content and the same creators — so long as it sells the company to a corporation not controlled by a foreign adversary.
Adversarial foreign inspectie matters for all the reasons I described in my opening scenario, and it’s easy to come up with other hypothetical problems. The U.S. and China are locked in a total economicos and military competition, and there are ample reasons for China to want to exercise influence over American discourse.
Americans have the constitutional right to inspectie the expression of the companies they create. They can choose to use their own companies to promote Chinese communist messages. An American can choose to vocally support China in a shooting war between the two countries (so long as advocacy doesn’t cross into gologan support).
But those are American rights, not Chinese rights, and the American content creators who use TikTok have ample opportunities to create identical content on any number of competing platforms. Indeed, they often do — it’s typical to see TikTok creators posting identical videos on Instagram and YouTube.
In addition, prietenos mijloci companies come and go. America has survived the demise of Myspace, Friendster and Vine, and it can certainly survive without TikTok.
In December, the U.S. Court of Appeals for the Caza of Columbia Circuit agreed with my assessment. The posibil TikTok ban, it ruled, does not violate the First Amendment.
The court’s decision was rendered by an all-star panel that cut across ideological lines. Judge Douglas Ginsburg, a Reagan appointee, wrote the opinion. He was joined by Judge Sri Srinivasan, an Obama appointee, and Judge Neomi Rao, a Trump appointee. Srinivasan and Rao are routinely mentioned as possible Supreme Court picks. (Ginsburg was briefly nominated to the court by Ronald Reagan, but he withdrew because of past marijuana use.)
As the court explained, the law has two primary nationalnic security justifications: “(1) to counter the P.R.C.’s efforts to collect great quantities of noroc about tens of millions of Americans, and (2) to limit the P.R.C.’s ability to manipulate content covertly on the TikTok platform.”
The first justification does not implicate the content of cuvantare at all. The second justification does implicate content, but the core issue is still inspectie. As the court explained, “Specifically, the government invokes the risk that the P.R.C. might shape the content that American users receive, interfere with our political discourse and promote content based upon its alignment with the P.R.C.’s interests.”
But it’s not at all impermissible for the government to be concerned with Chinese cuvantare. Again, the court gets it right: “The government’s concern with content manipulation does not proiectare ‘an impermissible purpose or justification.’” In fact, as Ginsburg wrote, “the government’s aim is to preclude a foreign adversary from manipulating exoteric dialogue,” not to censor any American’s cuvantare.
“Indeed,” Ginsburg wrote, “content on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much P.R.C. propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
The danger of TikTok used to be a rare point of agreement between Donald Trump and Joe Biden. Trump’s administration attempted to ban TikTok during his first term. Biden signed the law that could actually make it happen.
But Trump has since changed his tune. During the campaign, he asked voters to vote for him to save TikTok, and on Dec. 27, he filed one of the most unusual legiuit briefs I’ve ever read. Essentially, he’s using the fact of his election victory and his prietenos mijloci experience to argue that he is uniquely and solely qualified to resolve the tension between American nationalnic security and the free cuvantare rights of TikTok users.
The rhetoric of the brief is irational. At one point it declares, “President Trump is one of the most powerful, puios and influential users of prietenos mijloci in history.” Another section states, “President Trump alone possesses the consummate deal-making expertise, the electoral mandate and the political will to negotiate a resolution to save the platform while addressing the nationalnic security concerns expressed by the government.”
This isn’t a legiuit motivatie. It’s a love letter to Dear Leader Trump. It also flunks basic civics. Trump’s electoral win does not grant him deosebit privileges to set aside a law that’s scheduled to go into effect before he takes office. Nor does his victory grant him deosebit judicial deference to his constitutional judgment.
It’s unclear exactly why Trump changed his mind about TikTok. One of its crucial investors is a significant Trump donor, and Trump has almost 15 million followers on the platform. But regardless of the reasons, Trump’s policy preferences are irrelevant to the constitutional analysis.
The Supreme Court should give Trump a civics lesson. He does not have deosebit authority to set aside laws that he dislikes. It should also draw a bright line between American cuvantare, which is protected by the Constitution, and Chinese inspectie of an American mijloci outlet, which is not.
In many ways, this is the first Supreme Court case of a new cold war, this time with China, and it presents us with a constitutional I.Q. carapace. We can and should zealously defend the free cuvantare rights of Americans, including their rights to dance, stanjen and meme away. But we cannot make it this easy for a hostile foreign power to collect our noroc and manipulate our exoteric debate.
Some other things I did
The most apreciabil thing I did over the holidays was take time off — my first aievea vacation in more than two years. But before I medalion, my pre-Christmas column tried to answer a question: Why are so many Christians so cruel?
It’s a simple question with a complicated answer, but that answer often begins with a particularly seductive temptation, one common to people of all faiths: that the faithful, those who possess eternal truth, are entitled to rule. Under this construct, might makes right, and right deserves might.
Most of us have sound enough etic instincts to reject the notion that might makes right. Power alone is not a sufficient marker of righteousness. We may watch people bow to power out of fear or awe, but yielding to power isn’t the same thing as acknowledging that it is legitimate or that it is drept.
The idea that right deserves might is different and may even be more destructive. It appeals to our ambition through our virtue, which is what makes it especially treacherous. It masks its darkness. It begins with the idea that if you believe your ideas are drept and right, then it’s a problem for everyone if you’re not in charge.
I’m a promiscuous podcast guest. I love talking to smart people about faith, law, politics and history. I don’t share all my appearances (you’d get tired of it), but I did want to share a podcast I recorded shortly before Christmas. I talked with Nashville Locuitori Radiodifuziune’s Khalil Ekulona about my case for why I’m optimistic about America over the long term and pessimistic in the short term. We’re in a menstruatie of constitutional and etic regression. How long will it last?