Does TikTok Have a First Amendment Defense to the State Lawsuits?

Yesterday, the Attorneys General of thirteen states and the District of Columbia each filed a separate lawsuit against TikTok. As readers no doubt know, a federal law requires ByteDance to sell TikTok or to cease operations in the U.S. TikTok is currently suing to enjoin the enforcement of that federal law, but based on the oral argument in the D.C. Circuit last month, it looks unlikely to prevail. The state suits are not entirely overkill, however, because they seek monetary as well as injunctive relief, so they could go forward even if TikTok ceases operations in the U.S.

The federal government's defense against TikTok's free speech claim is that Congress has not targeted TikTok because of opposition to the content on its platform but because of national security concerns. Much of the evidence for the conclusion that TikTok, as a Chinese-owned company, poses a national security risk, is not available to the public, so it's difficult for someone (like me) who has not seen the classified evidence to know whether the government's claim is persuasive.

What about the state lawsuits? I haven't looked at all fourteen complaints, but I did look at the New York complaint. Most of the causes of action strike me as unproblematic from a First Amendment perspective. They allege various forms of false advertising, fraud, and deceptive business practices under general laws. The application of such laws to an expressive business is not inherently content-based. If Bob markets a cookbook as consisting of "dozens of recipes for tasty foods that will reverse male-pattern baldness" but Bob knows that none of the recipes in the book yields any foods that have any impact at all on male-pattern baldness, Bob commits fraud (and false advertising) notwithstanding the fact that a cookbook is an expressive product. So too for online platforms.

However, at least one of New York's causes of action (Count 7 for "Product Liability - Design Defect) and arguably another (Count 9 for "Negligence") strike me as potentially subject to a free speech defense. As a preliminary matter, in light of the SCOTUS rulings in the Netchoice cases, creating an algorithm that prioritizes what content is shown to which users under what circumstances is editorial discretion protected by the First Amendment. True, Justice Alito (joined by Justices Thomas and Gorsuch) characterized that principle as dicta, but even if so, it's dicta that commanded six SCOTUS votes, so it would be prudent for state and lower federal courts to follow it.

Now consider exactly what makes TikTok, as distinct from TikTok's marketing, allegedly defective. The claim by New York (and presumably the other states in their lawsuits) is that TikTok was designed to be addictive to young users. (It's designed to be addictive to adult users too, but that's not part of the complaint.) But what does "addictive" mean when the product is speech?

A spellbinding orator could be said to be addictive. So could a book so riveting that one can't put it down. If a state sued an orator or author for being so interesting that young listeners and readers were neglecting their schoolwork or suffering other harms, we would say those are harms that are mediated through speech. And because such speech doesn't fall into any unprotected category (such as "obscene for minors" or the like), the state would have a very heavy justificatory burden. How heavy? I suppose tort liability could attach for telling a joke so deadly that everyone who hears it dies laughing without offending the First Amendment, but I don't imagine that TikTok videos reach quite that level.

There's a wrinkle here, however. If a state banned or limited hours of exposure to "riveting speakers" or "books too interesting to put down," the state itself would have to make a determination based on the content of the speech or book about whether it crossed the line from uninteresting or mildly interesting to too-interesting. That determination would necessarily be content-based. By contrast, the allegation of design defect here does not require any government official to make such a determination. The allegation is that TikTok's algorithm selects materials that users find too interesting to resist. If some TikTok user is especially interested in videos in which a TikTok creator narrates in a monotone the drying of paint, the New York lawsuit would treat that as a manifestation of the defective design no less than it would treat any other material that users find interesting.

I'm not sure that distinction saves the design-defect claim from being content-based. TikTok is defective because it feeds users stuff they find interesting strikes me as content-based, even if it is not as obviously content-based as a claim that alleged TikTok is defective because it doesn't sufficiently prioritize material criticizing Xi Jinping.

To be clear, my conclusion is genuinely tentative. My current inclination is to say that the design-defect claim is content-based, but I might be persuaded otherwise. In the end, however, it almost certainly doesn't matter, because, as I noted, the other causes of action--sounding in fraud and false advertising--are unlikely to succumb to a First Amendment defense.

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Postscript: Speaking of matters so riveting they're unsafe, in my latest Verdict column I discuss the SCOTUS Term that started this week. By contrast with some other recent Terms, it has very few high-profile cases--so far. As I note in the column, however, the Court could very well be called upon to decide high-stakes election challenges in November or December. I also explain why there is reason to fear that the Court might rule more favorably towards Donald Trump this time around than in 2020.