Initial Comments on the Supreme Court’s TikTok Ban Opinion–TikTok v. Garland

[A much longer post is forthcoming. A few initial remarks]

[Update: the longer post is live, and it includes these remarks and 4,000 other words. I recommend you read that instead of this]

The Supreme Court’s ruling will foster more online censorship. The Supreme Court endorses a “Fortress USA” approach, i.e., that legislatures can impose special rules that create a bordered Internet customized for the US and more heavily censored than the Internet in other countries. Many foreign governments are already pursuing bordered and heavily censorial rules for their country, but now, those governments can point to Congress’ and the Supreme Court’s endorsement of the practice as validation of the tactic’s legitimacy.

The Supreme Court also endorses the deputization of First Amendment-protected actors (app stores) to enforce this Fortress USA censorship. (Note: the app stores sat this litigation out, deferring to others to fight their battle for them). Legislatures are already keenly interested in making third-party intermediaries into their censorship proxies, and the Supreme Court seems to be OK with that.

Also, the Supreme Court’s ruling, though heavily caveated, provides a roadmap for other US legislators to pursue censorship. Some of the other tricks those legislatures can use: set a short timeline on constitutional challenges, target the ownership of media enterprises for censorship rather than enacting censorship outright, and pretextually justify the law as advancing speculative “national security” interests. The Supreme Court might walk back some of these exceptions in future rulings. Until then, legislatures can and will continue to aggressively target free speech online with the Supreme Court’s encouragement, and we will all be the poorer for it.