On December 18, 2024, the Supreme Court granted certiorari in TikTok Inc. v. Garland, No. 24-656, taking up the First Amendment challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act — the federal law requiring ByteDance to divest TikTok or face a ban affecting 170 million American users. The Court set an expedited schedule, with oral argument on January 10, 2025, just nine days before the law’s divestment deadline. This is a major constitutional case, and while the Four Boxes Diner is primarily a Second Amendment channel, this case belongs in our conversation because the soapbox is one of the four boxes — and what happens to one of them has implications for all of them.
The Four Boxes Framework and Why It Matters Here
The “four boxes of liberty” formulation holds that free societies protect themselves through speech (the soapbox), democratic participation (the ballot box), the courts (the jury box), and ultimately — when the other three fail — self-defense (the ammo box). These boxes are not independent silos. They share a foundational principle: the government does not get to determine which rights are too inconvenient to protect.
TikTok Inc. v. Garland tests that principle directly for the soapbox. Congress passed a law banning a communications platform used by 170 million Americans, with the government’s justification centered on national security concerns about Chinese government influence over ByteDance. The First Amendment question is whether that justification — even assuming it is accurate — is sufficient to eliminate an entire communications medium for tens of millions of American speakers and viewers.
My position is clear: courts should apply serious scrutiny to government restrictions on any constitutional right, whether the right is rooted in the First Amendment or the Second. The government’s invocation of “national security” or “public safety” should be a trigger for heightened examination, not a get-out-of-scrutiny-free card. That principle matters here, and it matters equally in Second Amendment litigation.
The Parallel to Second Amendment Jurisprudence
In New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the Supreme Court rejected means-ends balancing for Second Amendment claims — the framework under which courts had been asking whether a firearms regulation was “reasonably related” to a substantial governmental interest. The Court held that this approach deferentially ratified government policy preferences rather than genuinely protecting constitutional rights. Government interests do not trump constitutional text and historical tradition.
The same analytical failure appears in First Amendment cases when courts defer excessively to government assertions of national security. The government’s interest in preventing foreign adversaries from influencing American discourse is legitimate. But legitimate interests do not automatically override constitutional rights. The question is whether the means chosen — in this case, an outright ban affecting the speech rights of 170 million Americans — is constitutionally justified.
If the government’s national security argument is accepted without rigorous judicial examination, it establishes a template. The same template — “safety” as a trump card over constitutional text — is precisely what anti-gun litigants use when they argue for firearms bans in the name of public safety. A Court that genuinely protects the First Amendment against government overreach is more likely to apply consistent scrutiny to the Second. A Court that rubber-stamps government power claims when the cause seems popular is a Court that will rubber-stamp those claims when the target is the Second Amendment too.
What the Expedited Schedule Signals
The Court’s decision to accept the case on an expedited basis — receiving briefs in the Christmas-to-New-Year’s window and scheduling argument nine days before the statutory deadline — is unusual and significant. The Court does not accelerate cases unless it believes the constitutional questions are urgent and answerable. The nine-Justice Court will confront a genuine tension between a democratically enacted law targeting a foreign-controlled platform and the First Amendment rights of the 170 million Americans who use it.
The Court should protect the speech rights of American users regardless of the Chinese ownership structure of the underlying company. The statute’s national security rationale should be subjected to genuine scrutiny, not deference. If Congress can ban a communications platform affecting 170 million Americans on national security grounds without clearing a high evidentiary bar, then the government’s power over constitutional rights is much broader than the Bill of Rights was designed to permit.
The Lesson for Second Amendment Advocates
Watching this case from the perspective of a Second Amendment attorney, the core lesson is this: constitutional rights are interconnected, and the doctrines courts develop in high-profile cases in one amendment area migrate to other amendments. If TikTok produces a strong ruling that courts must apply meaningful scrutiny to government restrictions on constitutional rights — that government security and safety arguments must be proven, not merely asserted — that precedent strengthens every constitutional right, including the right to keep and bear arms.
Pay attention to this one. The soapbox is under pressure. How the Supreme Court responds will tell us something important about how it will protect all four boxes.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.