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Constitutional Fight for the Digital Age

Jamal Bowman (D-NY) and supporters of TikTok hold signs during a rally to defend the app at the Capitol in March.

Image Creator: J. Scott Applewhite | Credit: AP

Throughout American history, free speech has been tested in times of global conflict. During World War I, President Woodrow Wilson signed laws that criminalized core First Amendment speech. It took the Supreme Court decades to reverse course and advance a broad vision of free speech protections. It remains to be seen how those broad protections will be applied to a rapidly changing social media landscape.

China is infamous for using communication networks and tech companies to get ahead of its overseas competitors. This makes the data privacy practices of TikTok—an app with 80 million active American users—and its ties with the Chinese Communist Party (CCP) a national security concern for the United States.

Avril Haines, President Biden's Director of National Intelligence, has warned about China using TikTok to “build frameworks for collecting foreign data” … and “target audiences for information campaigns.” FBI Director Chris Wray has highlighted the app’s capacity to advance Chinese “influence campaigns” and espionage efforts.

Politicians from both parties want to restrict TikTok. Last year, lawmakers barred TikTok on government-owned devices. Montana recently became the first state to pass a market ban. Many lawmakers are pushing to halt TikTok’s operation in the United States altogether. Opposition to a TikTok ban comes mainly from the progressive Left and the libertarian Right. Alexandria Ocasio-Cortez and fellow “squad” members such as Jamaal Bowman (D-NY) have hundreds of thousands of followers and remain active on the platform. Rand Paul (R-KY) worries that a ban will alienate young social media users from the Republican Party.

But even if these positions reflect elements of political self-interest, they appear to be right on the legal merits. An outright ban on TikTok is likely incompatible with the First Amendment and there’s little reason to believe that the courts would uphold one, should Congress pass it. A TikTok ban would fly in the face of jurisprudence supporting the right of the citizens to receive ideas, even from governments hostile to the United States. In Lamont v. Postmaster General (1965), the Supreme Court struck down a statute that empowered the Postmaster General to control the flow of foreign “communist political propaganda” through the mail. The plaintiff was Corliss Lamont, a socialist philosophy professor at Columbia. Even in the midst of the Cold War, the court unanimously ruled that Lamont had a right to receive ideas from the Soviet Union.

The Supreme Court hasn’t wavered in applying such protections to social media. In Packingham v. North Carolina (2017), the justices ruled unanimously that a law prohibiting sex offenders from using social media violated the First Amendment. Justice Anthony Kennedy, who wrote the majority opinion, noted that individuals’ right to participate in political debate trumped even the government interest in preventing pedophilia. Under the Constitution, a law cannot broadly ban access to digital “public forums” for speech.

In the final year of his presidency, Donald Trump tried to restrict both TikTok and the Chinese messaging app WeChat using emergency economic powers. A federal court ruled against him on First Amendment grounds. There is little reason to think that the Montana law, SB 419, will fare any better. If the law takes effect as intended next year, Montanans will be prevented from participating in protected forms of expression on the platform. Moreover, individuals from other states who use TikTok as a medium for self-expression will be unable to connect with an audience in Montana. These consequences establish a direct suppression of speech, which warrants strict scrutiny from courts.

To say that a ban on TikTok would implicate the First Amendment does not necessarily mean that it violates it. But a ban would have to satisfy First Amendment scrutiny to survive a constitutional challenge. Montana’s uphill battle to justify its constraints on free speech rests on its ability to convincingly argue that the ban is narrowly tailored to protect users from Chinese government influence campaigns and data collection.

Precedent protects an influence campaign as long as it does not amount to direct, foreign interference with an election. Data collection raises a more novel question. As Harvard Law Professor Noah Feldman wrote in Bloomberg last week, “I can't think of another example in First Amendment history where the government tried to assert that reading or viewing some content would hurt you, not because the content itself is dangerous but because someone else might spy on you while you are consuming the content.”

Montana’s forceful crackdown on TikTok coincides with the Biden administration’s ongoing negotiations with the company regarding its future in the United States. In April, White House officials directed TikTok to sever ties with its Beijing-based parent company, ByteDance, or else face a nationwide shutdown. However, for Washington to defend such a drastic measure, concrete evidence demonstrating TikTok to be a genuine threat is crucial.

While there is good reason to be concerned about TikTok and user privacy, mere “potential” threats would likely fall short in a courtroom. Ban supporters highlight a 2017 Chinese intelligence law requiring private companies to hand over customer data to the government if Beijing ever requests such information. However, TikTok says it wouldn’t comply. In any case, the government would face a high burden of justification for an outright ban.

Should judges decide that a TikTok ban represents a prior restraint on the speech of its users, the Biden Administration would have to prove an “exceptional government interest” to justify a ban. If a court determines that a ban is based on viewpoints espoused by TikTok — a real possibility, given the stated purpose of preventing Beijing from using the app to conduct covert influence campaigns — the administration would need to prove a “compelling government interest.” And even if judges were to rule that a TikTok ban was neutral regarding content and viewpoint – possible – the government would have to prove that its remedy was narrowly tailored.

What arguments might the government use to navigate around these obstacles? Some proponents of a ban say the Packingham precedent doesn’t apply because legislation would target a company, not individual users. For example, the FCC banned Chinese-owned communications companies like Huawei, China Telecom, and ZTE from entering U.S. networks. The D.C. Circuit upheld banning all those companies from American markets without mentioning the First Amendment.

The difference is that those companies sold communication equipment, whereas 80 million Americans practice speech on TikTok. The Huawei ban prevented US companies from using Huawei equipment. It didn't apply to consumers who owned Huawei products and didn't prevent them from buying new ones, either.

Montana’s SB 419 goes out of its way to punish not the app’s users but Apple and Google if they leave TikTok available to purchase in the state. Constitutionally, that doesn't make an actual difference, and it wouldn’t for a federal ban either. Imagine a law barring cable providers from working with CNN. Targeting the cable providers wouldn't make it any less of an infringement on CNN’s speech. Like it or not, the First Amendment gives TikTok and its users the same protection.

It seems that TikTok influencers, who make a living off the app, may have some breathing room before they have to find real jobs.


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