Our First Amendment right to express ourselves must be protected.
,
she/her,
Senior Counsel,
ACLU National Security Project
Patrick Toomey,
Deputy Director,
ACLU National Security Project
January 15, 2025
Our First Amendment right to express ourselves must be protected.
Last week, the Supreme Court heard arguments in one of the most important First Amendment cases of our time: TikTok v. Garland. Brought by TikTok and its users, the suit challenges a law passed last Congress that will functionally ban the platform in the U.S.starting January 19. If upheld, the law won’t just impact the more than 170 million Americans who use TikTok, it will also endanger the constitutional rights of every American to speak and receive information online.
As explained in the friend-of-the-court brief the ACLU and its partners filed with the Supreme Court, under the First Amendment the government must meet an extraordinarily high bar to ban an entire communications platform. To ban TikTok, the government must show that the ban is the only way to prevent serious, imminent harm to national security and that the ban limits no more speech than necessary to accomplish that purpose. The government has not come close to meeting that standard.
The law at issue gives the president unprecedented power to shut down Americans’ speech and access to information under the guise of protecting national security. It requires TikTok’s parent company, ByteDance, to sell the app or face a ban, while also granting the president broad authority to force divestiture and ban other communications platforms with corporate parents based in China.
The Department of Justice (DOJ) argues the law has two purposes: to limit the Chinese government’s ability to “covertly” manipulate what Americans see on TikTok, and to prevent the Chinese government from accessing Americans’ data. But, given the lack of evidence that TikTok is being exploited in either of these ways, neither satisfies the First Amendment high bar.
The government’s first justification boils down to fear of Chinese government propaganda. Indeed, more than 20 legislators justified their support for banning TikTok in these terms; citing the risk of foreign propaganda as well as other concerns about the content carried on TikTok, such as the content available to minors and the alleged suppression of pro-Ukraine videos.
As a general rule, the government can’t simply ban speech it dislikes. When Congress restricts speech based on its content or viewpoint, and especially when it bars speech in advance, it triggers the strictest test under the First Amendment. That test requires, among other things, real evidence of serious harm. But the DOJ has acknowledged there is no evidence that China is covertly manipulating TikTok’s content in the U.S.
Regardless, courts have long held that the government cannot keep Americans from accessing foreign propaganda. In 1965, the court struck down a law that required the postmaster general to detain “communist political propaganda,” which could be delivered to recipients only after they specifically requested it from the U.S. post office. In its decision, the court reasoned that even this “mere burden” was an unconstitutional effort to “control the flow of ideas to the public.”
Congress’s second justification for the law—to protect Americans’ data from the Chinese government—also fails under the First Amendment. While it is true that TikTok collects large amounts of user data, the government hasn’t pointed to any actual or imminent national security harm from this collection or explained how TikTok’s collection differs from that of countless other companies. But a ban would not effectively address Americans’ data security anyway, because the Chinese government, or other foreign entities, can purchase Americans’ personal data on the open market.
The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead. Others have likened the TikTok ban to existing restrictions on foreign ownership of radio licenses, arguing that if those rules are constitutional, so is this ban. That’s misleading. Those rules govern the allocation of a limited set of broadcast frequencies. The internet doesn’t have such constraints; it can accommodate an endless number of apps and platforms, offering Americans unlimited sources of information.
Banning TikTok is unprecedented, unconstitutional, and un-American. If the Supreme Court allows the government to shut down an entire platform on such a flimsy evidentiary record, it would set a disturbing precedent for future government restrictions on online speech. It would also increase the risk that sweeping invocations of “national security” will trump our constitutional rights.
The government does not get to control how Americans express themselves—on or offline—based on vague and hypothetical harms. This is the hallmark of authoritarian regimes, not the U.S.. The Supreme Court must block the ban and defend the freedoms at the heart of our democracy.
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Privacy & Technology
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In New Report, ACLU Warns Against Giving Private Companies Centralized Access to Police Data
WASHINGTON – The American Civil Liberties Union (ACLU) released a new report today about the increasingly central role that surveillance and tech companies are playing in US police departments and how that threatens to give private companies unfettered access to Americans’ sensitive data. The report examines the major companies involved, the potential ways this information could be abused or exploited, and the history of close ties between corporations and police. Every day, police across the country use body cameras, drones, dash cams, and fixed surveillance cameras gathering hours upon hours of footage of people going about their daily lives. And now, some of the biggest surveillance tech companies, including Axon, Flock, and Motorola, want to gather, analyze, and control this data by providing “operating systems” for police departments that, like operating systems on computers and phones, can see and control all the data in the system. This will threaten the civil rights and civil liberties of everyone who interacts with one of these cameras — knowingly or not. Part of this trend is the movement towards police cloud services, which facilitates the consolidation of data from thousands of U.S. police departments within corporate servers and gives these private actors live remote control over the surveillance tech even after it’s deployed in communities. Or as Axon puts it on their website, “integrating hardware devices and cloud software solutions” in “the Axon ecosystem” and connecting “every officer, responder and agency.” “Putting private, for-profit companies at the heart of modern police departments — what could go wrong? The answer is: plenty, and that’s what this paper outlines” said Jay Stanley, senior policy analyst with the ACLU’s Speech, Privacy and Technology Project.“Policymakers, the public, and the policing profession need to grapple with the implications of this corporatization of police departments — especially for people’s civil rights and liberties — and address it before this becomes normalized and leads to new forms of abuse we’ve never seen before.” These new corporate efforts to expand their work with police are especially worrying given how quickly surveillance technology is proliferating across the country — and how few places have strong guardrails or oversight in place. As the report details, there are many ways providers could exploit their insider access to this data, including using it to go after critics, journalists, labor unions, regulators, and competitors, or to try and fend off investigations into their products. The lack of safeguards also means that company employees could use this data to target exes, manipulate prediction markets, or even alter evidence. Unfortunately, it’s not just the companies selling these products that the public needs to be worried about. According to the report, there is another set of players that raise many of the same concerns about private companies’ access to police data and the corporate role in policing: cloud computing platforms like Amazon Web Services (AWS), Microsoft Azure, and Google Cloud Platform, which currently also have access to the growing mountain of data generated by surveillance-based policing. The report lays out six recommendations that policymakers could implement to protect their constituents. Recommendations include contract requirements restricting private vendors’ access to law enforcement data, mandating the use of local rather than cloud services, and passing both the Fourth Amendment Is Not For Sale Act and Community Control Over Police Surveillance (CCOPS) laws.
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National Security
Court Hears Arguments on Releasing Trump Administration Memo Claiming to Justify Caribbean Boat Strikes
NEW YORK — A United States District Court in the Southern District of New York heard arguments today in a lawsuit seeking the immediate release of an Office of Legal Counsel (OLC) opinion that the Trump administration is using to justify and govern its illegal campaign of lethal strikes on civilian boats in international waters. In today’s hearing, the American Civil Liberties Union (ACLU), New York Civil Liberties Union (NYCLU), and the Center for Constitutional Rights argued that the Trump administration cannot keep its legal justification for the boat strikes campaign secret from the American people while repeatedly referencing it in public. The groups asked the presiding judge to order the release of the OLC opinion after personally reviewing it to ensure that the administration discloses all of the disclosable legal analysis to the public. Under the Freedom of Information Act, the government must by default disclose its records to the public. However, in court, the Trump administration took the radical position that the U.S. Constitution permits it to withhold from public view records protected by the presidential communications privilege — a privilege meant to protect advisory documents held closely to the president and his immediate staff — even if those records contain binding agency law or have been distributed to administration officials who play no role in presidential decision-making. The judge questioned the administration’s attorney about the limits and novelty of this expansive view of presidential privilege, which the government presented for the first time at oral argument, and asked him why the government has opted to keep its legal justification for the boat strikes campaign secret even after having made other similar types of legal memoranda public. During the hearing, the government’s attorney also acknowledged that there are parts of the memo’s legal analysis that could be isolated and released to the public without revealing classified information. “People across the country, politicians across the aisle, and the families of victims have been demanding answers as to how our government is justifying the cold-blooded murder of civilians,” said Jeffrey Stein, staff attorney with the ACLU’s National Security Project. “The Trump administration has murdered over 210 civilians with no sound legal or moral basis. At a minimum, the administration must disclose to the American people why it thinks this killing spree is lawful.” The groups are suing to force the disclosure of a legal opinion authored by OLC — a part of the Justice Department whose opinions are generally treated as binding within the executive branch — that supposedly validates the ongoing strikes as lawful acts in an alleged “armed conflict” with unspecified “drug cartels.” Reportedly, the memo also purports to immunize personnel who authorized or took part in these unlawful strikes from future criminal prosecution for what would otherwise simply be homicides. “The Trump administration is displacing the fundamental mandates of international law with the phony wartime rhetoric of a basic autocrat,” said Baher Azmy, legal director of the Center for Constitutional Rights. “If the OLC opinion seeks to dress up the obvious illegality of these serial homicides in legalese in order to provide cover, the public needs to see this analysis and ultimately hold accountable all those who facilitate murder in the United States’ name.” Contrary to the government’s public assertions, the U.S. is not, and could not be, in an armed conflict with Latin American drug cartels. Under international law, an armed conflict between a state and a non-state actor exists only if the non-state actor is an “organized armed group” that is structured and disciplined like regular armed forces and is engaged in “protracted armed violence” against the state. There is no plausible argument that any drug cartel satisfies this test vis-a-vis the United States. “The public deserves to know how the Trump administration is rubber-stamping the killing of civilians in the Caribbean,” said Ify Chikezie, staff attorney at the New York Civil Liberties Union. “By claiming that these attacks are legal while refusing to provide any evidence or rationale, President Trump shows once again his disdain for basic transparency, human rights, and the rule of law. The court must step in and order the administration to release these documents immediately.” Since Sept. 2, the Trump administration’s lethal strikes on boats have murdered at least 200 civilians, in clear violation of domestic and international law. In addition to a lawsuit enforcing a FOIA request on the OLC memo, the ACLU and Center for Constitutional Rights have also filed a lawsuit on behalf of two families from Trinidad & Tobago who are seeking redress after a U.S. boat strike killed their loved ones, and held a hearing at the Inter-American Commission on Human Rights on how the problematic lethal-strike policy violates international law and is an unconstitutional claim of executive power. This press release is available online here and here. To learn more about the case: see here and here.
Court Case: FOIA Case Seeking the Trump Administration’s Legal Justification for Deadly Boat Strikes
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National Security
Court to Hear Arguments in Lawsuit Demanding Trump Admin Publicly Release Legal Rationale for Illegal Boat Strikes
WHAT: On June 24, 2026, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights will argue before the U.S. District Court for the Southern District of New York in a Freedom of Information Act case related to the Trump administration’s ongoing illegal boat strikes in the Eastern Caribbean and Pacific Ocean. The groups are asking the court to order the Trump administration to immediately release a still-secret legal opinion authored by the Justice Department’s Office of Legal Counsel (OLC) that administration officials have repeatedly invoked as the purported legal basis for its ongoing lethal strikes campaign, which has killed over 200 civilians. Judge Paul A. Engelmayer has ordered the parties to discuss at the hearing whether he should personally review the OLC legal opinion in his chambers to inform his decision. WHO: Jeffrey Stein, staff attorney with the ACLU’s National Security Project WHEN: June 24, 2026, at 11:00 a.m. WHERE: Thurgood Marshall United States Courthouse, Courtroom 1305 (40 Foley Square, New York, NY 10007) Press are welcome to attend in person. ACLU and Center for Constitutional Rights spokespeople will be available for interviews after the argument. If you have questions, please reach out to Allegra Harpootlian (aharpootlian@aclu.org) and Jen Nessel (press@ccrjustice.org) BACKGROUND: Since Sept. 2, 2025, the Trump administration has conducted at least 64 strikes on civilian boats in the Caribbean, murdering at least 210 civilians, in clear violation of domestic and international law. In October 2025, ACLU, the Center for Constitutional Rights, and the New York Civil Liberties Union filed a lawsuit to enforce their Freedom of Information Act request seeking immediate disclosure of the OLC opinion that not only provides the legal reasoning and governing parameters for the strikes but reportedly purports to immunize personnel who authorized or took part in these unlawful strikes from future criminal prosecution. The Trump administration has repeatedly acknowledged the existence of this memo but has refused to subject it to public scrutiny. The ACLU, ACLU of Massachusetts, and the Center for Constitutional Rights are also representing two Trinidadian families, who are suing after the Trump administration killed their loved ones in October of last year. The men — Chad Joseph and Rishi Samaroo — were headed home after working as farm hands in Venezuela when the U.S. bombed their boat, killing them and four other people.
Court Case: FOIA Case Seeking the Trump Administration’s Legal Justification for Deadly Boat Strikes
Affiliate: New York