<p>There are thousands of children who have grown up in India having heard of TikTok but not having used it. In our days, the equivalent used to be flights; it just goes to show how quickly cultural totems change. Our kids can’t use TikTok because the government blocked it in 2020 on the grounds that TikTok’s owners were Chinese. In America, its most lucrative market, TikTok has 170 million users. Let that sink in a bit. In a population of 346 million Americans, half the population is using a Chinese-made app. Like India, America too soured on the prospect of TikTok because of its Chinese origins. But American exceptionalism extends to creative ways of making lives hard for businesses that they don’t like. The manner in which they went about banning TikTok led to a US Supreme Court decision which I will discuss.</p>.<p>The US congress did not ban TikTok outright. Instead, it undercut its economic infrastructure by stipulating that it must divest itself of its Chinese ownership or face closure. One can imagine the US Congress saying “We don’t want TikTok to go away, all we are asking is that TikTok must change its owner. Also we won’t punish TikTok if it doesn’t comply with our orders; instead we will punish platforms like Google and Apple that distribute the TikTok app.” TikTok was not impressed with these justifications.</p>.In techno-state utopia, efficiency is at odds with democracy.<p>TikTok went to the US Supreme Court arguing that its constitutional freedom of expression was being violated. Unlike India, freedom of expression in the United States is subject to fewer constraints, political or legal. In India, the app was banned without a murmur of protest. Even in the US, the government can impose restrictions on the freedom of expression, except it’s a high threshold compared to other rights of citizens. The US Supreme Court unanimously held that the government had met this threshold, because of national security reasons. The US Congress had determined that China could, through TikTok, potentially manipulate information, extract information and feed information. If the government decided this won’t do, then that’s it. The critical distinction made by the court was between content-specific and content-neutral restrictions on free speech. Only specific restrictions on content would be a problem. Since the US Congress did not impose any restrictions on what is to be expressed on the TikTok platform, and only imposed a restriction on its ownership, the restrictions were subject to a more relaxed standard.</p>.<p>Of course, as soon as the Supreme Court’s decision was announced, President Donald Trump issued an executive order pausing its enforcement. How is it even possible that Trump can issue executive orders declaring that he will not enforce the law? In India, we have a written constitution and such things are a bit more difficult to imagine. In America, the extent of the powers given to the government organs is a bit more fluid. Until the famous Supreme Court decision in Marbury v Madison, no one knew if the Supreme Court could sit in judgement over the constitutionality of legislation. The US judges just usurped to themselves the power of judicial review. Now, no one really knows the limits of the President’s executive power either. It will be settled between a hyper-aggressive President and the courts eventually. In the middle is the legislature, which is singing its own tune. Some senators, including some from Trump’s own party, have threatened sanctions on corporations defying the TikTok law.</p>.Professor’s Cut: Learning from high-art cinema.<p>Can India learn some lessons from the TikTok case? The case suggests that corporate ownership restrictions are not as much of a problem for the freedom of expression given their content-neutral approach. I believe that in certain contexts, this might not be a bad thing. For example, the government might want to consider restricting corporate ownership of news media. If conglomerates begin owning news media, there is a major conflict of interest whenever these very conglomerates are involved in wrongdoing. The TikTok case paves the way to revisit the idea that who owns news media or social media platforms is as important as what is expressed by the news media or through these platforms. We have ourselves a case that is a mix of technology, human rights and politics. The mix is entertaining but fraught with uncertainties for all the stakeholders.</p>
<p>There are thousands of children who have grown up in India having heard of TikTok but not having used it. In our days, the equivalent used to be flights; it just goes to show how quickly cultural totems change. Our kids can’t use TikTok because the government blocked it in 2020 on the grounds that TikTok’s owners were Chinese. In America, its most lucrative market, TikTok has 170 million users. Let that sink in a bit. In a population of 346 million Americans, half the population is using a Chinese-made app. Like India, America too soured on the prospect of TikTok because of its Chinese origins. But American exceptionalism extends to creative ways of making lives hard for businesses that they don’t like. The manner in which they went about banning TikTok led to a US Supreme Court decision which I will discuss.</p>.<p>The US congress did not ban TikTok outright. Instead, it undercut its economic infrastructure by stipulating that it must divest itself of its Chinese ownership or face closure. One can imagine the US Congress saying “We don’t want TikTok to go away, all we are asking is that TikTok must change its owner. Also we won’t punish TikTok if it doesn’t comply with our orders; instead we will punish platforms like Google and Apple that distribute the TikTok app.” TikTok was not impressed with these justifications.</p>.In techno-state utopia, efficiency is at odds with democracy.<p>TikTok went to the US Supreme Court arguing that its constitutional freedom of expression was being violated. Unlike India, freedom of expression in the United States is subject to fewer constraints, political or legal. In India, the app was banned without a murmur of protest. Even in the US, the government can impose restrictions on the freedom of expression, except it’s a high threshold compared to other rights of citizens. The US Supreme Court unanimously held that the government had met this threshold, because of national security reasons. The US Congress had determined that China could, through TikTok, potentially manipulate information, extract information and feed information. If the government decided this won’t do, then that’s it. The critical distinction made by the court was between content-specific and content-neutral restrictions on free speech. Only specific restrictions on content would be a problem. Since the US Congress did not impose any restrictions on what is to be expressed on the TikTok platform, and only imposed a restriction on its ownership, the restrictions were subject to a more relaxed standard.</p>.<p>Of course, as soon as the Supreme Court’s decision was announced, President Donald Trump issued an executive order pausing its enforcement. How is it even possible that Trump can issue executive orders declaring that he will not enforce the law? In India, we have a written constitution and such things are a bit more difficult to imagine. In America, the extent of the powers given to the government organs is a bit more fluid. Until the famous Supreme Court decision in Marbury v Madison, no one knew if the Supreme Court could sit in judgement over the constitutionality of legislation. The US judges just usurped to themselves the power of judicial review. Now, no one really knows the limits of the President’s executive power either. It will be settled between a hyper-aggressive President and the courts eventually. In the middle is the legislature, which is singing its own tune. Some senators, including some from Trump’s own party, have threatened sanctions on corporations defying the TikTok law.</p>.Professor’s Cut: Learning from high-art cinema.<p>Can India learn some lessons from the TikTok case? The case suggests that corporate ownership restrictions are not as much of a problem for the freedom of expression given their content-neutral approach. I believe that in certain contexts, this might not be a bad thing. For example, the government might want to consider restricting corporate ownership of news media. If conglomerates begin owning news media, there is a major conflict of interest whenever these very conglomerates are involved in wrongdoing. The TikTok case paves the way to revisit the idea that who owns news media or social media platforms is as important as what is expressed by the news media or through these platforms. We have ourselves a case that is a mix of technology, human rights and politics. The mix is entertaining but fraught with uncertainties for all the stakeholders.</p>
