The ultimate fate of TikTok in America remains unclear. After a brief blackout, the application returned live as discussions between the TikTok and the new presidential administration continue. Officials in all three branches of the US government have weighed in, but the ultimate resolution is, of course, unknown.

　　In its January 17 decision in TikTok v. Garland,the Supreme Court unanimously upheld the “Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACA) against TikTok. TikTok’s parent company, ByteDance, is located in Communist China. PAFACA requires the parent company to either find a non-Chinese buyer for TikTok or terminate operations in the United States.

　　TikTok, of course, is a highly popular video-sharing Internet application. As detailed below, it also is a massive data-collection agency. Under Chinese law, its parent is obligated to share all collected data with the Communist government upon demand.

　　The court’s procedure in this Internet-related case—like its procedure in most electronic-medium cases—was wrong. Specifically, it asked the wrong questions, relied on highly subjective inquiries, and led the court into needless difficulty.

　　The First Amendment, ratified in 1791, protects six specific freedoms. By the time it was adopted, the broad outlines of each had been drawn by British and American statutes, judicial decisions, and custom—although there were disputes about some of the details.

　　Unfortunately, much of the Supreme Court’s First Amendment jurisprudence since then has been entirely disconnected from the intended meaning of the amendment. Today, the court relies on categories and balancing tests pulled out of thin air by the “progressive” majorities who dominated the bench during much of the twentieth century.

　　One of the most serious deviations from the actual meaning of the First Amendment is treating electronic-medium controversies as matters of free speech rather than what they are: cases involving freedom of the press. The court made this mistake in its TikTok decision as well. In keeping with its twentieth-century “progressive” methodology, the court began by asking whether PAFACA restricts “speech” because of what was said—that is,the court asked whether or not PAFACA’s restriction is “content based.”

　　Under the Court’s jurisprudence, a content-based restriction is subject to “strict scrutiny.” That means it is valid only if (1) the government proves that the restriction (2) furthers a “compelling governmental purpose” (otherwise stated as a “compelling state interest”), and (3) is “narrowly-tailored” (or otherwise stated as “necessary”) to further that interest. The court decided that the restriction was not “content based.” In other words, it was not adopted because of anything that was being said on TikTok or because of any of TikTok’s content editing. The restriction was enacted because of concerns about a foreign adversary having access to Americans’ data.

　　Under the Court’s jurisprudence, if a law restricting speech is not content-based—i.e., is “content-neutral”—then it still is void unless it passes a form of “intermediate scrutiny.” This means that (1) the government must prove (2) that the law “furthers an important Government interest” and (3) does not burden substantially more speech than is necessary to further the interest (or bears a “substantial relationship” to its goal).

　　The Court found that the government had carried its burden of proof: Preventing a foreign adversary from massive data gathering from Americans is “an important Government interest” and the method Congress chose was “sufficiently tailored” to the purpose.

　　Fidelity to the Constitution required applying late-eighteenth-century “freedom of the press” principles to this case rather than twentieth century “freedom of speech” principles.

　　Most of the procedures the justices follow in “free speech” cases have no real connection to the actual meaning of the First Amendment. If you read the Constitution’s text and other Founding-era legal documents, you can see how foreign that procedure is from the Founders’ legal methods.

　　Notice the subjectivity: For example, what is a “compelling governmental purpose”? It turns out that in practice, it’s whatever progressive justices think is politically important. Even “ethnic and gender diversity” in a state law school has been ruled to be a compelling governmental purpose, thereby justifying limits on constitutional freedoms. Similarly, what is an “important” government interest? How much speech is “substantially more speech?” And so forth, throughout the court’s First Amendment cases.

　　Fidelity to the Constitution required applying late-eighteenth-century “freedom of the press” principles to this case rather than twentieth-century “freedom of speech” principles. Yes, doing it right would create some difficulties of its own. But it would be applying the Constitution rather than the ramblings of now-dead justices who made things up as they went along.

　　Although there were no electronic media when the First Amendment was ratified, the Founding era division between “speech” and “the press” remains clear. “Speech” was communication in person. “The press” was communication through a medium. During the Founding era, the media included newspapers, pamphlets, letters, books, and broadsides.

　　The crucial difference between speech and the press did not depend on the nature of the medium, however. One difference was (and is) that it is easier to hide one’s identity when communicating through a medium than in direct person-to-person speech. Another difference was (and is) that one can preserve and disseminate communications through media, while person-to-person speech is local and transitory. If a speech is recorded, the recorded version becomes “the press.”

　　The founding generation defined the legal boundaries between speech and press freedom largely because of those differences. That is why, for example, the rules governing spoken slander were different from the rules governing printed libel. And these differences in dissemination and preservability are just as applicable to electronic media as to paper media. Indeed, probably more so.

　　In TikTok v. Garland, the court explained how the company collects data from its 170 million American users:

　　TikTok’s data collection practices extend to age, phone number, precise location, Internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.” … TikTok collects user data, user content, behavioral data (including “keystroke patterns and rhythms”), and device and network data (including device contacts and calendars).

　　But it’s not just 170 million users. The court also described how the company collects data from untold millions of non-consenting non-users:

　　If, for example, a user allows TikTok access to the user’s phone contact list to connect with others on the platform, TikTok can access any data stored in the user’s contact list, including names, contact information, contact photos, job titles, and notes.

　　Does this sort of activity qualify as “freedom of the press?” Consider this illustration: The year is 1792. The First Amendment has just been adopted. Mr. Tock is the owner of a newspaper. He has employees who collect information and distribute the paper. But they are told that during their rounds they are to peek in windows, look down from roofs, listen in on conversations, and otherwise spy on as many people as possible. Mr. Tock is under contract with the government of a foreign power (or with hostile Indian tribes) to provide all collected data on demand.

　　Would the fact that Mr. Tock wrapped his spying within newspaper activities protect his business from government restriction? I do not know the answer to this question, although I suspect it is “no.” A definitive answer may be found in the statutes and judicial opinions of the time—which, it appears, no one thought to consult in TikTok v. Garland.

　　If a definitive answer is not available, perhaps the court could have followed the advice of Edmund Plowden, the sixteenth-century legal scholar who remained the leading authority on statutory construction during the Founding era:

　　When you peruse a statute [or a constitutional provision –ed. ] … suppose that the law-maker is present, and that you have asked him the question you want to know touching the equity, then you must give yourself such an answer as you imagine he would have done, if he had been present.

　　If the answer to this question is based soundly on the law, assumptions, and customs underlying the First Amendment, the procedure—even if partially subjective—would be more faithful to the Constitution than how the court proceeded. Even if, as is likely, the justices’ ultimate conclusion was the same.