On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

The thing is, TikTok is not merely speech. It is software. As such, it also instructs people's hardware to do whatever ByteDance chooses, and does so in secret, since it is not built from source code by the people whose devices it controls. This important detail goes beyond communications; it also makes possible various kinds of foreign surveillance, election interference, etc, and these things have become a real threat to democracies lately.

This overlap of free expression ("speech") and software-as-espionage-tool is relatively new compared to the US Constitution, so it should be no surprise that First Amendment protection here is questionable.

One possible solution: Don't ban TikTok, but require its source code to be released to both users and qualified domestic reviewers, and only allow distribution of builds that were verifiably made from that reviewed source code. Even this wouldn't be perfect, since back doors can be designed into software and remain undetected even when the source code is visible. It would at least bring the app/service more in line with "speech", though.

I think a key fact is rather downplayed in the article: the first amendment applies to Americans not non-Americans. While Americans use TikTok, it is owned and run by a non-american entity so it is not afforded the protections of the first amendment.

The district courts ruling was that the government had acted to protect freedom of speech from a foreign adversary by banning TikTok. Essentially arguing that this is not breaching the first amendment as the intention is not to abridge freedom of speech but rather protect it.

I can see both sides of this debate but I think the article is probably right - the intention is probably irrelevant as it is defacto abridging the freedom of speech of the american users who will lose access to the platform.

And as others have said the real solution may have been proper privacy laws in the US that stop all tech companies farming and selling users data. But the US companies don't want that and neither seemingly does the US government - they seem to not mind US companies abusing their citizens, it's only when it's foreign governments that it's wrong.