What Would Madison Make of TikTok?

How would James Madison, the architect of the First Amendment, view today's controversial TikTok ban debate? Host Dr. Katie Crawford Lackey and constitutional expert Dr. Lynn Uzzell explore the surprising parallels between 18th-century free speech battles and our modern social media challenges.

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- Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American. Hosted by Dr. Katie Crawford Lackey and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals and legal practitioners, we examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.- Hello and welcome to Consider the Constitution. I'm your host, Dr. Katie Crawford Lackey, director of the Center for the Constitution at James Madison's Montpelier. As we kick off season two in 2025, this year has already presented us with examples of how relevant and important James Madison and the US Constitution continue to be in our everyday lives. Today we're focusing on the First Amendment and more specifically, the right to free speech. Now this right may be on the minds of many of us as the US Supreme Court prepares to hear oral arguments on whether the ban on TikTok should go into effect. Now, when President Biden passed the protecting Americans from Foreign Adversary Control Applications Act in April of 2024, the law was set to go into effect in January of 2025. Now, as we come to this point, we have to ask ourselves, is this a violation of the First Amendment, specifically the right to free speech? And what would James Madison, who is the architect of the Bill of Rights, think about this and joining us today to talk about this is Dr. Lynn Uzzell. We welcomed her in our very first episode of Consider the Constitution, and it's a real pleasure to have her back on the show. She is currently an associate professor of political science at Bethel University. She has previously taught at Baylor University, the University of Richmond, the University of Virginia, and Washington and Lee University. She was also the scholar in residence at the Center for the Constitution here at Montpelier and the founding director of the Summer Civics Institute at the University of Virginia. Lynn, it's a pleasure to have you back on the show. Thank you for joining us today,- Katie. The pleasure is all mine.- So as I referenced this right to Free speech is very much in the press right now thinking about this potential ban that will go into effect. So I wanna talk a bit about that later on. But first, can you give us a sense of the Bill of Rights? You know, Madison's role in this, I referenced he's the architect of the Bill of Rights, but why was he writing this bill of Rights after the Constitution was drafted? What was so important? What was his thought process?- Well, it's a very interesting actually because Madison was publicly against a bill of rights before he was for it. So in the Virginia ratifying debates, Madison said that a bill of rights was not necessary and could even be dangerous. And he was echoing the arguments that had already been given by James Wilson that a constitution which offers limited powers for the legislature is already its best protection, that those limited powers mean that Congress doesn't have the power to limit speech or limit religion, and therefore if we add a bill of rights, then we name certain rights that Congress can't do, which seems to suggest that Congress would have those powers if those exclusions were not named and therefore it's dangerous because it undermines the limited function of Congress. And so that's the argument that Madison gave in the Virginia Ratifying Convention. But later when he was writing privately to Jefferson, he said that he was always in favor of a Bill of Rights as long as it could be written in a certain way. That didn't mean that these rights were construed in these ways and he thought that he solved that problem with the Ninth Amendment. But when he was running for his seat in Congress, he had to deal with his earlier public statements because there were many voters and especially religious ones who wanted to see protections for things like free speech and freedom of religion. And they believe that Madison would not be a good champion of that. And therefore during what we would recognize as a campaign, Madison made all sorts of campaign promises that he would champion a Bill of rights if he was elected. So when he was elected, he found that it was a a matter of duty to his constituencies to live up to his campaign promise. And that's why he was on the forefront of those who are arguing that we had to have a bill of Rights. And in some ways he really did force Congress' hand in addressing these amendments that he wanted to add to the Constitution. And when he was deciding which amendments to formulate, most of them were not his own brainchild. So he was looking at the ratifying statements of several different states which had requested amendments. And so he was compiling all of these requested amendments and he kept many of them and he also discarded many of them, but most of the ones that were asking for the protection of rights he kept, and therefore most of the amendments that were passed in 1791 related to the protection of rights.- When we think about the Bill of Rights in particularly the First Amendment, there's a number of rights in that one amendment itself. We have freedom of religion, speech, assembly, petition, and press. What do we know about what Madison was thinking about those five rights that he grouped into this First Amendment? Were these rights of the same significance and value, or did he place a higher value on any number of those five rights?- Well, we have what Madison says on several different occasions about the relative importance of these rights. And also when he was delivering his speech defending the amendments to the Constitution, this was on June 8th in 1789. He was giving his reasons why a bill of rights was a good thing and he was describing the different kinds of rights that were named typically in a Bill of Rights. And he said that some of these rights are part of our natural rights, things that we would have in the state of nature if there was no government, but that we reserve and we don't give up when we enter into a civil society. But he said many of these rights are not natural in character such as a right to a jury trial, but they're part of a civil contract, they're part of the compact that we enter into. And he said they are just as important for protecting natural rights as reserving the natural rights themselves. So obviously freedom of speech and by a certain extension freedom of press would be in that category of natural rights that are reserved, but even among the natural rights, there is a certain hierarchy. So when he defended religious freedom, he said that this was a uniquely inalienable, right? In other words, even if a people were to give up that right to government, they shouldn't, by its nature, it's unalienable. It is not something that can be given up. That's not how he described freedom of speech. Freedom of speech is also a natural, right? It is what we would have the right to do if there was no government. But he never said that it was by its nature inalienable. Instead he said that speech and press were something that were necessary for other ends. They were necessary and and indeed, if you look at his original proposal for the First Amendment, he said, freedom of speech being the bulwark of Liberty should therefore require these protections. And he also wanted this, one of the ones that he pulled aside as being liberty, that he wanted protected not only from Congress because the Bill of Rights related originally only to powers that Congress could not exercise liberties that Congress could not infringe upon, but they were not applicable to state governments. But Madison, if he had gotten his way, would've had a separate amendment that would've restricted state powers as well. And he named certain liberties that were not to be encroached upon by state governments, one of them being the of conscience and another of them being jury trial and another of them being freedom of press. So this is a freedom that he considered to be particularly important and again, as a bulwark of liberty, which is a phrasing that he got from someone else from one of Cato's letters. And so according to Cato's letters, he described the freedom of press as a bulwark of liberty.- Now after the Constitution is ratified, the Bill of Rights is passed. We have that as part of the Constitution. What happens in terms of how early America is responding to these rights that are now protected in the Bill of Rights? I'm thinking about Madison's involved in government with Jefferson and then Madison himself becomes president. So what does the exercise of these rights look like in early America?- Well, that is another interesting question because although a lot of people today like to think that the founders had this monolithic understanding of what rights meant and we need to discover what that one understanding is, some people think that we need to apply that one understanding. Other people think that we need to know it just for the sake of historical or civic appreciation. But on some questions, there wasn't a unified understanding. And that is definitely true of things like freedom of religion and freedom of speech and press. And the reason is because we adopted certain understandings from the common law of England and the common law of England had a robust understanding of freedom of press and freedom of religion. But Madison explicitly stated these were too narrow, these were not the American understandings of freedom of press and freedom of religion. And it's for that reason that he often was trying to actively en large people's understanding of these rights. And people today are somewhat surprised that the John Adams administration would even attempt to pass something like the Sedition Act. The Sedition Act made it illegal to criticize the government. And even the Sedition Act was in a certain respect, more liberal and more expansive than similar sedition acts in England.- And those acts are passed after the Bill of Rights is ratified, the American people are their speech and press all that is protected under the Constitution.- Correct? Exactly. So at this time, the Adams administration and the Federalist Party who enacted the Sedition Act believed that it was completely constitutional and consistent with what we now call the First Amendment. Another little accident of history is that 12 amendments were sent to the states and only 10 of them were adopted. And therefore what we call the First Amendment was actually the Third Amendment. And so during this debate and during this conversation, Madison and others often refer to the Third Amendment, and when they do, so they are referring to what we know as the First Amendment. And that is because they didn't know whether those first two amendments were going to be ratified eventually or not. That's a little historical aside. So getting back to what we call the First Amendment, Madison was explicitly saying in his report of 1800 that we do not abide by the common law understanding of freedom of press that the American understanding is necessarily broader and he compared it also to rights of conscience, which he said again is not the American understanding. And so what the Federalist understanding was, again, they were abiding by the English common law, understanding is that what it protected against was prior restraint. What that means is essentially censorship. So what Britain was protecting against was that publishers would not have to have their publications previewed by a body of sensors and approved before they could be published. So that was the principle. There was no prior restraint. However, they could be held accountable for what they published. So if what they published was sedition, then they could be punished for that. And that's what Adams was defending in the Sedition Act. But I mentioned that American understanding even in the Adams administration, was more liberal and permissive. And what I meant by that was under the American Sedition Act, truth was used as a defense. So it was only falsehoods which were liable under the Sedition Act in America. But in England you could actually be charged for sedition even if you said something defamatory against the government. And it was true. So Adams thought that he was being very liberal when he passed the Sedition Act. And I should also point out that many people were charged and convicted under the Sedition Act by the district federal court, which is to say the courts never struck it down. They accepted that the Sedition Act was constitutional. And therefore Madison, when he was arguing against the Sedition Act, was arguing against the judicial interpretation of it. He was saying that the American understanding was broader. And to the extent that we accept Madison's interpretation, we are accepting what you could call the private and legislative interpretation of the Constitution and not the judicial one at the time because the judiciary never caught up with Madison's understanding until the 20th century.- I this really fascinating. So from what I'm understanding, this is a really important distinction. So the Sedition Act is really geared towards those who are spouting falsehoods you. You can get in trouble basically if you are saying false things about the government, not if you're saying the truth.- Exactly. And there is a story, in fact, this is a funny story and I haven't independently verified it, but I wanna believe it's true. I read it in one of the histories of the time that there was a jury that acquitted somebody who was charged end of sedition act because this person had said that if a war was started, John Adams ARS would make a huge target for a British cannon and the jury acquitted him because truth is an adequate defense.- This is such a fascinating concept. So truth being a defense, it makes me wonder, is this sedition act today? Would we consider it infringement of free speech? And it also makes me think about how Madison is understanding and interpreting the Constitution, the Bill of Rights, which he authored while you have others, including the judiciary who's not seeing eye to eye with him and how we understand that or make sense of it today, when we do have disagreements among private versus government systems, how are we carrying this through today?- Right? And this is exactly the difference between Madison and his contemporaries at the time because Madison said that's not broad enough. Even saying that truth is a defense is not enough of a defense of freedom of the press. In other words, it has to defend falsehoods as well. And that's not necessarily libel because libel will be knowing falsehoods and that is still illegal. Certain knowing falsehoods, not all of them can be illegal. So for instance, fraud is illegal. If you knowingly distort the truth about something you're trying to sell, then that is a violation of the law even though it is a crime that is based on speech. Nevertheless, what Madison wanted to defend was a broader notion of freedom of press, which allowed for error. And the reason is because even though he was not in favor of error, he also did not trust any of the branches of government to be the arbiter of truth and falsehood. And that's why the Sedition Act was a violation in Madison's understanding of the First Amendment because even though he understood that newspapers often were guilty of what he called abuses, and that is a number of falsehoods, he was indeed the target of many falsehoods in the newspaper. And according to Dolly Madison, he generally laughed at them, but he defended the necessity of having to put up with these abuses because the benefits of a free press outweighed the dangers.- So Lynn, you mentioned Madison hopes to enlarge this understanding of our rights. Now when I think about how that applies today, I can't help but think about this current situation with the court preparing to hear arguments about this protecting Americans from foreign adversary controlled applications act. Now that's the act that Joe Biden passed in April of 2024. And the real concern there is that certain platforms such as TikTok are owned by foreign companies. So in this case, TikTok is owned by Ance, which is a Chinese company. So there's concerns about national security here. However, a lot of scholars, lawyers, government officials have questioned, does this violate the First Amendment, this freedom of speech. And as you referenced, this isn't the first example of this in history. We have this sedition act as you referenced, but how can we understand the heart of what Madison was trying to achieve by deepening our understanding, seeing this freedom of speech in a broader context? How can we understand that and make sense of it today when we look at cases such as the one going before the court?- Yeah, and that is the tricky question, and I want to tiptoe very carefully into this difficult question. So I want to bring out some parallels with Madison's situation, but I also want to emphasize that there are some elements to this current TikTok case, which are not like anything that Madison faced. And so I wanna do a little bit of both so that I give ammunition I guess to both sides of the question. So on the question of national security, Madison is very clear that even the fear of foreign danger is not sufficient to justify the restriction of rights. So if you look at the Alien and Sedition Act, that was very similar to the current situation. The reason why the Alien Act was attached to the Sedition Act is because John Adams was entering this quasi war with France. And so we are currently in a quasi war with China. They are considered an adversarial nation, but we're not at war with them. It's similar to what the Adams administration was facing with France. And therefore that in Adam's mind justified the restriction of rights not only to Americans who were trying to speak and write freely, but also to aliens, foreigners who were living within the United States, that Adams felt he could summarily ship off back to their home countries without any kind of due process. And Madison was opposed to both of these. So even though the rationale for the Alienist edition act was domestic security against foreign threats, Madison did not think that that rationale was sufficient. And a similar example could be said within the war of 1812, a lot of people were urging President Madison to restrict certain rights because there were a lot of writers, especially in New England that were arguing in favor of secession and were actively colluding with the enemy. And this was a real war, a hot war, not a quasi war. And Madison, when he was president, always resisted that. So Adam's compromise rights for a quasi war. President Madison was not willing to compromise rights even for a foreign war. And indeed during this period, during this period of the Aliens Sedition Act, Madison mused privately to Jefferson, that it was during these periods when people felt threatened that rights were most at risk and that's when he thought that rights should be bolstered most.- So in essence, Madison doesn't believe that the fear of foreign interference is a reason to deny rights. That's- Correct. So there is my Madisonian argument in favor of those who think that the TikTok ban is unconstitutional. But having said that, I wanna say a few words for the other side as well. And that is where this case is not like anything that Madison had encountered, and that is because TikTok, which I understand is the number one platform for communication among those who use social media is owned by a foreign company. And what I wanna emphasize is that the Bill of Rights, as broad as they are, apply only to American citizens and foreigners who live in America. The Bill of Rights does not protect the rights of foreigners living abroad. So in Madison's time, Frenchmen could not claim First Amendment rights in France. And therefore to the extent that the TikTok case is about whether or not the owners of TikTok the bite dance that you are referring to have First Amendment rights, I don't think that that can be upheld. There are other considerations and I'm sure that they will come up in the case. These go beyond Madison's considerations. Again, to my knowledge, it was never brought up while he was speaking about freedom of the press. But in subsequent court cases, they have talked about the rights of American to receive foreign news. And so that has been upheld by the Supreme Court, even though I don't think that there's an analog in Madison's time. But again, the question will be whether or not Americans can still receive freely foreign news without TikTok. So these are some of the sticky widgets that are going to be coming into play in the court case. I imagine- As we wrap up our conversation today, Lynn, I wanna reference something you mentioned earlier about freedom of speech being a bulwark of liberty. Can you say a little bit more about that in context to Madison, but then perhaps bring it up to the present as well?- I'm glad that you brought that up because I think that that is a really important point to understand when trying to grapple with Madison's understanding of freedom of speech and freedom of press. Because a lot of people today talk about free speech as if that were the end. What we want is the most possible speech imaginable, throw in hate speech, throw in falsehoods, all of it is good as long as it's free. And that's not Madison's approach. So Madison defended freedom of religion, for instance, because of the invaluable liberty that that is, that what freedom of religion is, is the exercise of one's duty towards his creator. Okay? So that's why it's important to protect in and of itself. Freedom of scree and freedom of press are not important for themselves so much as they are important for something else that lies beyond itself. Now, one of them is what you just mentioned, the bulwark of liberty. If you are in a form of government like a monarchy or an aristocracy, it's not important for the people to be informed because the people who are making the decisions are the elite. It's important for them to have free speech. And that's why the British notion of free speech was limited to those in parliament, not to the citizens. But the reason why the American understanding of free speech is broader is because in America it's understood that the people are their own rulers, therefore they need to be informed. And that's why free speech is necessary, not because all speech is good, but because freedom of speech is necessary to inform the citizenry. And therefore, freedom of speech is important because of what it brings about freedom of speech is important because it is necessary for the pursuit of truth. And I think that we can cherish this freedom only if we understand the goal towards which it ends. And therefore, even though freedom of speech by necessity has to protect falsehoods, it's not because falsehoods are valuable, it's rather because those claims that are considered falsehoods must have free play in order to test them and decide whether or not they're falsehoods. But we always need to remember that freedom of speech is valuable not because of itself so much as what it points to that liberty depends on the pursuit of truth, and truth is the end not all manner of speech.- Well, this has given me much fodder for thought, Lynn, especially as we watch the news and see what happens with this case. And our conversation helped me understand just the true level of nuance that's involved here. You referenced Madison and the thought process that was happening in his head, but the conversations he was having with his contemporaries, Jefferson and Adams, and how we as a society a collective interpret the First Amendment over time. And I'm gonna be thinking a lot about what Madison thought, even though perhaps we can't definitively say what his comments would be on this case, I think we can glean some insight from what you've talked about today from your research on him to have a better understanding of how this case may play out. So I wanna thank you for joining us today to provide that insight.- Katie, I wanna thank you. It has been an absolute delight. I will be ready to hop on the microphone anytime you are ready to have me again. I love talking to you and your audience- And we love hearing from you. So thank you again for being with us and I wanna thank all those who are listening to this show today. I hope you'll share it with your family and friends. And please join us again in two weeks as we continue to consider the Constitution.