TikTok or Not, Americans Still Have a Right To Receive Communist Propaganda

Even as the Supreme Court upheld Congress’ mandate that TikTok’s Chinese owner sell the platform or shut it down, the First Amendment still guarantees the right to hear and receive information, not just to speak freely. While this principle has been obscured in the public discussion surrounding TikTok, the Supreme Court has long acknowledged it, even with respect to dubious content such as that produced and distributed by hostile foreign powers like China. The extremely narrow holding in TikTok v. Garland does not change it.

At the height of the Cold War in the 1960s, Congress was concerned about the Soviet Union and China spreading information with the intent to “indoctrinate, convert, induce, or in any other way influence” Americans about those countries’ foreign policies or even foment domestic discord. Under a 1962 statute, the United States Post Office, then the dominant means of delivering and exchanging information, established 10 sorting facilities which evaluated incoming mail from abroad and detained any material deemed to be “communist political propaganda.” An intended American recipient of “propaganda” would be sent a notice that his or her mail was being held at the Post Office and was required explicitly to request delivery, otherwise the mail would be destroyed.

An American publisher, Corliss Lamont, was mailed a copy of the Peking Review news magazine, the content of which one imagines hewed pretty closely to the desires of the Chinese Communist Party. Lamont did not respond to the notice that his mail was being detained and sued the government instead. The Supreme Court ultimately ruled in Lamont v. Postmaster General (1965) that intercepting mail and holding it for later release was unconstitutional because it imposed a burden on citizens to affirmatively request in writing that their mail actually be delivered. In so doing, Americans would be forced to reveal to the government their interest in information from China or Russia, whether based on scholarly interest, interest in global affairs, sheer curiosity, or even misguided ideological affinity: “This amounts, in our judgment, to an unconstitutional abridgment of the addressee’s First Amendment rights”, the Court wrote.

In a concurring opinion, Justice William Brennan explained that while “it is true that the First Amendment contains no specific guarantee of access to publications,” the Bill of Rights also protects “fundamental personal rights necessary” to make its explicit language, such as the freedom of speech, “fully meaningful.” The “right to receive publications is such a fundamental right,” he wrote, and denying access to disfavored information, even from dubious or hostile sources, would undermine the very purpose of the First Amendment and “is a power denied to government.”

In TikTok v. Garland oral arguments, the Lamont case featured prominently. The attorney representing TikTok users reminded the justices that the famed Archibald Cox, the solicitor general who represented the federal government in Lamont, didn’t argue that Americans could be prevented from receiving Communist information—he only argued that the burden imposed on Americans by having to request mail delivery was not excessive. The Court in 1965 rejected this narrower rationale too.

There are urgent reasons we should be concerned about the efforts of foreign actors to exploit the openness of American society to spread propaganda (or “misinformation,” to use the fashionable term). Moreover, the TikTok case exposed the extremely disturbing capabilities of its algorithm to collect information on and potentially do harm to Americans, now and in the future.

While he could scarcely imagine the technical capabilities and potential harms of TikTok’s information gathering, Justice Brennan seemed to anticipate the nuanced challenge six decades ago: “In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose….That the governments which originate this propaganda themselves have no equivalent guarantees only highlights the cherished values of our constitutional framework.”

In our age, as in the 1960s, closed dictatorships such as China seal their citizens off from contact and information originating in the free world, and there is an understandable temptation to treat them reciprocally. The Chinese government and Chinese companies do not enjoy the benefits of free speech guaranteed by our Constitution. But American citizens still do, including the often forgotten right to hear and receive information, even from the most suspicious sources. In his seemingly reluctant and “admittedly tentative” concurring opinion in TikTok v. Garland, Justice Neil Gorsuch alluded to the principle and its history while acknowledging the unique technical and security challenges presented by TikTok: “Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.”

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