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.

President-elect Donald Trump has nominated the Fox News Channel host Pete Hegseth to lead the Department of Defense (DOD). If confirmed, the military veteran will lead the nation’s armed forces in what will be his first appointment to a political office.

Hegseth was commissioned as an infantry officer in the Army National Guard and he served in Afghanistan and Iraq after 9/11. Prior to his stint as a talk show host on Fox News, he led the nonprofits Vets for Freedom and Concerned Veterans for America.

The ACLU has spent more than 100 years holding power accountable. While as a matter of policy the ACLU does not endorse or oppose nominees for cabinet-level positions, it does examine and publicize nominees’ civil liberties records. Given the power and influence defense officials have over U.S. national security policy and decision making, a president’s secretary of defense choice has serious consequences for civil liberties at home and abroad. Ahead of the January Senate confirmation hearings, we analyze Hegseth’s record on key civil liberties issues, and urge Congress to carefully consider the impact his leadership would have on our rights.

As the largest U.S. government agency with the largest discretionary budget, the DOD oversees all U.S. military operations. The secretary of defense is responsible for ensuring troops comply with all applicable laws, including the laws of war. Importantly, the secretary must comply with both the Constitution, which requires Congress alone to make the ultimate decision to go to war and use force except to repel a sudden attack (and then only for a limited period); and the War Powers Resolution, which Congress intended to reflect the Constitution’s checks and balances. The Constitution itself gives the power to declare war and authorize the use of force to Congress alone. The ACLU has long advocated against unlawful use of force abroad, as well as adherence to our system of checks and balances and international humanitarian and human rights law.

With blatant disregard for the appropriate role of the military on American soil, Trump has, on numerous occasions, stated that he plans to use military troops to help conduct his mass deportation plans, or suppress protest. Deployment of troops for these purposes would be an abuse of power. As secretary of defense, Hegseth could be called upon to support or carry out these extreme and unprecedented actions.

The DOD is the largest employer in the U.S., with nearly 1 million civilian employees and more than 2 million military personnel. Whether it’s protecting the rights of LGBTQ servicemembers and their families, ensuring that immigrant service members are given the expedited citizenship they may be entitled to, or demanding that parents be allowed to enroll and graduate from military service academies, it is vital for the DOD to protect the civil rights and liberties of its employees and comply with the rule of law in serving the American people writ large.

Hegseth has a long record of extremely concerning views on a variety of civil liberties issues related to the military and U.S. national security policy. His positions include:

1. He has excused war crimes. Disregarding the objections of senior defense officials, he encouraged Trump to pardon three U.S. servicemen accused, or convicted, of war crimes. Trump ultimately pardoned all three men.
2. He has supported overbroad claims of presidential authority to use lethal force without congressional authorization. He not only supported the Trump administration’s lethal strike against Qassem Soleimani, leader of Iran's Islamic Revolutionary Guard Corps-Qods Force, he also pushed for Trump to bomb cultural sites in Iran, which would have contravened the laws of war. Hegseth has also suggested that the U.S. use the military against Mexico’s drug cartels.
3. He has supported using the military to suppress protests. In 2020, he supported sending the military to U.S. cities, like Seattle, to suppress racial justice protests.
4. He has opposed efforts to fight discrimination in the military. Hegseth has stated that, “any general that was involved, general, admiral, whatever, that was involved in any of the DEI, woke s--t has got to go.” In reference to the current chairman of the Joint Chiefs of Staff, who is Black, Hegseth wrote, “Take it to the racist bank: black troops, at all levels, will be promoted simply based on their race. Some will be qualified; some will not be.”
5. He recently shifted his views on women serving in combat. In November, he said he opposed women in combat, and used gender stereotypes to make his case. He stated, “I’m straight up just saying we should not have women in combat roles. It hasn’t made us more effective. Hasn’t made us more lethal. Has made fighting more complicated.” But after meeting with several women senators in December, he said “we support all women in our military today, . . . combat included.”
6. Hegseth has also opposed medical care for transgender soldiers. He stated that transgender soldiers are “not deployable” because they are “reliant on chemicals” and referred to discussions on transgender issues in the military as “trans lunacy.”
7. He has made virulently anti-Muslim statements. He asserted that Muslim communities in America represent “an existential threat” to the country and repeated other vitriolic and hateful stereotypes about Muslims, who already face discrimination in the U.S., especially by national security agencies.

Finally, credible allegations exist that Hegseth has engaged in sexual misconduct, and the Senate must investigate the matter further before advancing his nomination. Given longstanding concerns regarding sexual assault in the military and the statements Hegseth has made regarding the role of women in combat, these allegations are directly relevant to his nomination as secretary of defense.

Based on his track record, the ACLU is concerned about how Hegseth would use the DOD’s vast power and resources, and about the impact his leadership would have on our civil liberties and civil rights. At his confirmation hearing, we’re urging senators to ask Hegseth:

1. When the framers drafted the Constitution, they wanted to ensure the clear separation of the civilian government from a nonpolitical, nonpartisan military. The military should have no role to play in mass deportation or suppression of protest and in fact we condemn other countries that send in troops to break up protests or enforce civil laws. Will you pledge not to deploy the military to intimidate or use force against protesters in American cities? Will you pledge not to deploy troops to carry out civilian law enforcement functions on American soil, which could place them at risk of violating criminal law?
2. In 2015, 78 Senators voted to ensure that this country never again engages in torture. Do you agree to support and adhere to that bipartisan pledge?
3. Adherence to the rule of law, including the laws of war, is critical for U.S. service members who rely on the secretary of defense to ensure they are not placed at risk of committing unlawful actions. Will you ensure that the DOD conforms to the checks and balances enshrined in the Constitution and act only as authorized by Congress, as well as international humanitarian law?
4. Will you support LGBTQ service members continuing to serve in the military, and also provide health care, including reproductive health care and gender-affirming care, for all eligible service members and their families?
5. In the space of less than two months, you went from arguing, ““I’m straight up just saying we should not have women in combat roles,” to later saying, “we support all women in our military today, . . . combat included.” Will you commit now to continue all of the Department’s current policies and practices that support women serving in combat and in combat positions?