The DC Circuit has held that the U.S. government can force the sale or shutting down of TikTok because of concerns about the influence of the Chinese government over the actions of the platform’s parent company. Among other things, the court rejected an argument that shutting down the platform violated TikTok’s First Amendment rights. The D.C. court wrote: “In this case, a foreign government threatens to distort free speech on an important medium of communication.”

So while under the Supreme Court’s NetChoice case, government content moderation control violates the First Amendment, when it comes to foreign controlled platforms under the TikTok case, government content moderation control prevents distortion and promotes First Amendment values.

In reading the DC Circuit opinion , I was reminded of a parallel dispute in the campaign finance arena over limiting spending by foreign nationals. In Citizens United, the Court held that domestic corporations cannot be limited in how much they can spend to influence federal elections. Citizens United rejected the argument, previously accepted in cases such as Austin v. Michigan Chamber of Commerce, that preventing distortion of the political marketplace could justify such a ban.

And yet the Court in Bluman v. FEC soon after Citizens United allowed a complete ban on spending by foreign nationals, citing the interest in preserving democratic self-government. As I’ve explained, this too is an anti-distortion rationale.

In Bluman and TikTok, the courts reached divergent conclusions because of the foreign identity of the speaker. But they don’t recognize the tension.

The D.C. Circuit did not cite Bluman in TikTok but it might as well have. When the case makes its way to SCOTUS, I expect the Bluman parallel will get some play.