But what exactly did the experts get wrong here? As someone who predicted the outcome of this case more accurately than the experts, let me explain why I didn’t trust the experts.
First, laws are not presumptively unconstitutional just because they raise free speech concerns. This should be obvious to anyone who knows what the courts have said, but apparently it’s not obvious to many experts.
While many experts celebrated the outcome of Moody v. NetChoice (2024)—a case that dealt a severe blow to laws that stop censorship from Big Tech—they didn’t closely read what the Supreme Court said: “In the usual First Amendment case, the Court must decide whether to apply strict or intermediate scrutiny.” The Supreme Court also suggested that other laws could be upheld under intermediate scrutiny: “Many possible interests relating to social media can meet that test.”
As it turned out, the TikTok law did meet that test. Since it targets social media platforms on the basis of foreign ownership—not based on the speech on the platform—it is a content-neutral law; content-neutral laws are only subject to intermediate scrutiny. Strict scrutiny, by contrast, is reserved for content-based laws that favor or disfavor certain viewpoints.
The experts, however, did not seriously entertain the possibility of intermediate scrutiny. In his New York Times op-ed, Jameel Jaffer of the Knight Institute said in passing that there’s a “strong argument” that strict scrutiny would apply. Jennifer Huddleston of the Cato Institute just assumed without evidence that strict scrutiny would apply.
What makes Huddleston’s piece even more bizarre is that she cited a case suggesting that intermediate scrutiny would apply. When looking at a similar TikTok law in Montana, the judge said that Montana was “closer to the legal mark” when they argued for intermediate scrutiny. (The main reason this law was struck down was because states can’t legislate on foreign policy.)
In the DC Circuit Court, the judges also said that intermediate scrutiny was the better fit for the TikTok law, though they declined to rest their judgment on this—because the law would even survive strict scrutiny. And of course, the experts predicted the opposite here as well.
The second mistake experts made was that they inaccurately called this law a TikTok ban. The first sentence of Jaffer’s New York Times op-ed framed the issue as a “debate about banning TikTok.” Sen. Rand Paul’s statement about the court’s decision also framed it as a “decision to uphold the TikTok ban.” And in a four-Pinocchios lie, Elizabeth Nolan Brown of Reason said, “The law makes it illegal for Americans to ‘access, maintain, or update’ apps linked to ‘foreign adversaries.’ ”
These libertarians are entitled to their own opinions, but not their own facts. Playing fast and loose with the facts is a good strategy to win influence on social media but lose in the courts. Facts matter in the courts. This law takes a divest-first, ban-second approach; TikTok is only banned if the Chinese Communist Party refuses to divest.
Why does that factual detail matter? Under strict scrutiny, the court will ask if less restrictive means could also solve the problem; many laws will fail strict scrutiny here. If the problem is that the CCP effectively controls TikTok, then couldn’t we make the CCP divest TikTok instead of banning TikTok? Since the law only bans TikTok if the CCP refuses to divest, though, that more or less settles the debate on whether divestment is viable as a less restrictive means.
The third reason why the experts were wrong is that the governments brought receipts on the issue of national security, but the experts pretended those receipts didn’t exist. To put this debate in perspective, even after Forbes published a bombshell story on how TikTok spied on journalists, Huddleston and Paul Matzko unironically wrote, “The mere suspicion that TikTok might someday be used to monitor American citizens or manipulate elections is not a substitute for the kind of evidence needed to justify a ban in court.” (And again, it’s only a ban if the CCP refuses to divest.)
Simply put, the evidence was there. Incoming FCC chair Brendan Carr in particular compiled a great thread of that evidence. The free speech experts, however, never seriously grappled with this evidence. Their arguments existed in a fact-free, alternative world where this evidence didn’t exist.
Strict scrutiny has a reputation for being “strict in theory, fatal in fact,” but one exception is national security…if the government brings receipts. In Holder v. Humanitarian Law Project (2010), the Supreme Court upheld a ban on “expert advice or assistance” for foreign terrorist organizations: “Given the sensitive interests in national security and foreign affairs at stake,” if the government can provide “persuasive evidence,” then their judgment is “entitled to significant weight.”
In its decision upholding the TikTok law, the DC Circuit Court cited Holder, noting that the government had also provided persuasive evidence on matters of national security. This should not have been surprising if you had listened to Brendan Carr, but it would be surprising if you had listened to the free speech “experts.”
While you would not fault a social media influencer for making these sorts of mistakes, the same cannot be said of experts. The expert is supposed to be the one who understands the nuances of strict vs. intermediate scrutiny, the one who can accurately characterize what a law does, and the one who is familiar with precedents like Holder v. Humanitarian Law Project (2010).
For all their foibles, influencers will still have a large audience (though that doesn’t always translate to real-world influence). If the experts don’t have expertise, though, then what do they have?
