Because government’s interest in thwarting Chinese espionage is so compelling, the justices did not need to wrestle with censorship of a foreign power.

To grasp the significance of TikTok v. Garland, in which the Supreme Court today unanimously upheld the statute requiring the China-controlled owners of the social-media platform to divest, it is best to start at the end. I mean the very end: the last two sentences of the final opinion (out of three) in the case, Justice Neil Gorsuch’s concurrence:

Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.

The law at issue addresses, first and foremost, a massive espionage operation against Americans by the Chinese Communist regime. For purposes of the Court’s proper role in American governance, then, the case is about whether the political branches of the federal government, which – unlike the Court – are constitutionally responsible for national security and accountable to the voters whose lives are at stake, have the authority to defend against the predations of a hostile foreign power.

The answer to that question is yes. As a result, there should be very little for the Court to do besides endorse what the political branches have done – here, by proper statutory law rather than executive fiat, and in an exhibition of bipartisanship unusual in our deeply divided times.

The little that the Court was left to do was, of course, important: It had to ensure that the government’s national defense action did not unduly restrict the legitimate rights of Americans. At stake in this instance were the rights of 170 million TikTok users. At issue was whether their First Amendment rights were being violated — their right to express themselves, exchanges messages, and associate on the platform.

Consequently, in the Court’s main unsigned (i.e., per curiam) opinion, there is extensive consideration of (a) whether the divestment law implicates the First Amendment at all; (b) if so, to what extent it does; and (c) based on that, what level of scrutiny the Court should apply.

Ironically, the third consideration, which seems as if it should be the least important, is usually the decisive one. If the Court applies “strict scrutiny,” which requires the government to show both that it has a compelling interest and that its law is the least restrictive means of accomplishing that interest, the government often loses. If “intermediate scrutiny” is applied, the government must merely demonstrate that its legitimate interest is rationally advanced by its law — and the government nearly always wins, even if reasonable minds can differ over whether there were better ways of advancing it.

Here, the First Amendment was barely implicated. The TikTok divestment law (formally, the Protecting Americans from Foreign Adversary Controlled Applications Act) does not regulate speech. Instead, it requires TikTok’s China-controlled owner, ByteDance Ltd., to divest because the app is used to gather huge amounts of personal data, not only the users’ data but also that of the other 170 million Americans who don’t use TikTok but inevitably interact with those who do. (Chinese law requires ByteDance, like all Chinese companies, to comply with any data demands made by the communist regime.) And there is no change in their speech that TikTok users could undertake that would alter the statute’s requirement that ByteDance divest; hence, the law does not regulate speech content at all.

So why is the case before the justices? For two reasons, one of which is comparatively trivial (but got lots of attention) and the other profound (though it got considerably less attention).

The comparatively trivial reason is the ancillary impact on speech. Even though the law at issue does not regulate content, it could have the downstream effect of restricting – indeed, silencing – speech because if ByteDance cannot or will not divest within the statutory period (270 days, which works out to Sunday, January 19), TikTok will effectively be shut down in the United States. (As Charles C. W. Cooke explains in an episode of The Editors this week, the shutdown would take time because of the technology involved.)

Under the Court’s precedents, even if a law does not seek to regulate expression, it could violate the First Amendment if it imposes a “disproportionate burden” on speech. Nevertheless, unlike regulations of content, which get strict scrutiny treatment, claims of disproportionate burden get intermediate scrutiny. Given the government’s patent national security interest in preventing a hostile regime from spying on Americans, even the potential shutdown of the platform would not violate the First Amendment.

In fact, the government’s interest in thwarting China’s cyber-aggression is sufficiently immense that, to my mind, the burden on speech is not even arguably disproportionate, such that I doubt even intermediate scrutiny should apply. And that’s quite apart from the fact that, if the platform were to be sold to a non-China-controlled operator, as the law requires, speech would be completely unaffected.

In the end, that’s why the government won this case easily. No matter what level of scrutiny was applied, the national security interest in defending against espionage would carry the day.

But what about what I described above as a “profound” First Amendment reason why the case was before the Court?

There are provisions in the law that endeavor to prevent China and other foreign adversaries from controlling the algorithm that determines what content is seen by users of a communications app (such as TikTok). This includes banning such adversaries from being able to alter the content in what the Court described as “an undetectable manner.” In short, subordinate to its concerns about China’s data-collection, the law seeks to prohibit a foreign power from shaping messaging to which Americans are exposed.

That is a direct regulation of content, rationalized on fears of foreign disinformation. It also implicates the ability of Americans to interact with and echo the messaging of foreign powers.

That is a fraught First Amendment issue. Of course, I’d prefer that Americans were not inundated with propaganda from, say, China, Russia, al-Qaeda, or Hamas. But Americans have a constitutional right to sample and even peddle such propaganda (as long as they don’t cross the line into incitement). Furthermore, our American theory of free expression is that bad or false speech is best overcome by worthy and true speech, not by empowering the government to play censor.

Just consider the abuses of power that have occurred in the past decade. Government officials suppressed American political speech — the core First Amendment value — under the partisan guise of fighting “misinformation” and “foreign interference in our elections.” (To be clear on the latter, we’re talking about mere and often absurd political messaging, particularly from Russia, not other forms of interference — e.g., sabotaging voting systems — that are already illegal.)

As rightly worried as we are about China’s use of TikTok to spread lies and stoke controversy, such messaging is a drop in the ocean of America’s marketplace of ideas and expression. We can effectively refute it. More perilous is the notion that government agents — whether out of partisanship or because they sincerely believe it’s for our own good — should be empowered to ban speech that the government has decided is false or serves a foreign power’s agenda. If these last years prove anything, it is that government cannot be trusted with such power. In many ways, that is why we have a First Amendment — with its guarantee not only of free speech but of a free press.

In the TikTok case, the Supreme Court sidestepped this issue of regulating the messaging of a foreign power. Essentially, the justices decided that the law in question was overwhelmingly directed at the legitimate, compelling objective of defeating Chinese data-collection and espionage. That being so, the law would be upheld regardless of whether other justifications for it were dubious.

That is the right answer . . . for today. But the question of empowering government to censor on the ground that it, unilaterally, has decided information is false or serves the interests of a foreign power, is not going away. An alarming number of Americans seem not only open to granting government that authority but also frighteningly insouciant about the dangers of doing so. Fortunately, the Court was attuned to this challenge; in upholding the law, it took pains not to green-light a government power to suppress alleged misinformation.