Is Banning TikTok Constitutional?

U.S. lawmakers and officials are ratcheting up threats to ban TikTok, saying the Chinese-owned video-sharing app used by millions of Americans poses a threat to privacy and U.S. national security.

But free speech advocates and legal experts say an outright ban would likely face a constitutional hurdle: the First Amendment right to free speech.

“If passed by Congress and enacted into law, a nationwide ban on TikTok would have serious ramifications for free expression in the digital sphere, infringing on Americans’ First Amendment rights and setting a potent and worrying precedent in a time of increased censorship of internet users around the world,” a coalition of free speech advocacy organizations wrote in a letter to Congress last week, urging a solution short of an outright ban.

The plea came as U.S. lawmakers grilled TikTok CEO Shou Chew over concerns the Chinese government could exploit the platform’s user data for espionage and influence operations in the United States.

TikTok, which bills itself as a “platform for free expression” and a “modern-day version of the town square,” says it has more than 150 million users in the United States.

But the platform is owned by ByteDance, a Beijing-based company, and U.S. officials have raised concerns that the Chinese government could utilize the app’s user data to influence and spy on Americans.

Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, said while there are legitimate privacy and national security concerns about TikTok, the First Amendment implications of a ban so far have received little public attention.

“If nothing else, it’s important for that to be a significant part of the conversation,” Terr said in an interview. “It’s important for people to consider alongside national security concerns.”

To be sure, the First Amendment is not absolute. There are types of speech that are not protected by the amendment. Among them: obscenity, defamation and incitement.

But the Supreme Court has also made it clear there are limits on how far the government can go to regulate speech, even when it involves a foreign adversary or when the government argues that national security is at stake.

In a landmark 1965 case, the Supreme Court invalidated a law that prevented Americans from receiving foreign mail that the government deemed was “communist political propaganda.”

In another consequential case involving a defamation lawsuit brought against The New York Times, the court ruled that even an “erroneous statement” enjoyed some constitutional protection.

“And that’s relevant because here, one of the reasons that Congress is concerned about TikTok is the potential that the Chinese government could use it to spread disinformation,” said Caitlin Vogus, deputy director of the Free Expression Project at the Center for Democracy and Technology, one of the signatories of the letter to Congress.

Proponents of a ban deny a prohibition would run afoul of the First Amendment.

“This is not a First Amendment issue, because we’re not trying to ban booty videos,” Republican Senator Marco Rubio, a longtime critic of TikTok, said on the Senate floor on Monday.

ByteDance, TikTok’s parent company, is beholden to the Chinese Communist Party, Rubio said.

“So, if the Communist Party goes to ByteDance and says, ‘We want you to use that algorithm to push these videos on Americans to convince them of whatever,’ they have to do it. They don’t have an option,” Rubio said.

The Biden administration has reportedly demanded that ByteDance divest itself from TikTok or face a possible ban.

TikTok denies the allegations and says it has taken measures to protect the privacy and security of its U.S. user data.

Rubio is sponsoring one of several competing bills that envision different pathways to a TikTok ban.

A House bill called the Deterring America’s Technological Adversaries Act would empower the president to shut down TikTok.

A Senate bill called the RESTRICT Act would authorize the Commerce Department to investigate information and communications technologies to determine whether they pose national security risks.

This would not be the first time the U.S. government has attempted to ban TikTok.

In 2020, then-President Donald Trump issued an executive order declaring a national emergency that would have effectively shut down the app.

In response, TikTok sued the Trump administration, arguing that the executive order violated its due process and First Amendment rights.

While courts did not weigh in on the question of free speech, they blocked the ban on the grounds that Trump’s order exceeded statutory authority by targeting “informational materials” and “personal communication.”

Allowing the ban would “have the effect of shutting down, within the United States, a platform for expressive activity used by about 700 million individuals globally,” including more than 100 million Americans, federal judge Wendy Beetlestone wrote in response to a lawsuit brought by a group of TikTok users.

A fresh attempt to ban TikTok, whether through legislation or executive action, would likely trigger a First Amendment challenge from the platform, as well as its content creators and users, according to free speech advocates. And the case could end up before the Supreme Court.

In determining the constitutionality of a ban, courts would likely apply a judicial review test known as an “intermediate scrutiny standard,” Vogus said.

“It would still mean that any ban would have to be justified by an important governmental interest and that a ban would have to be narrowly tailored to address that interest,” Vogus said. “And I think that those are two significant barriers to a TikTok ban.”

But others say a “content-neutral” ban would pass Supreme Court muster.

“To pass content-neutral laws, the government would need to show that the restraint on speech, if any, is narrowly tailored to serve a ‘significant government interest’ and leaves open reasonable alternative avenues for expression,” Joel Thayer, president of the Digital Progress Institute, wrote in a recent column in The Hill online newspaper.

In Congress, even as the push to ban TikTok gathers steam, there are lone voices of dissent.

One is progressive Democrat Alexandria Ocasio-Cortez. Another is Democratic Representative Jamal Bowman, himself a prolific TikTok user.

Opposition to TikTok, Bowman said, stems from “hysteria” whipped up by a “Red scare around China.”

“Our First Amendment gives us the right to speak freely and to communicate freely, and TikTok as a platform has created a community and a space for free speech for 150 million Americans and counting,” Bowman, who has more than 180,000 TikTok followers, said recently at a rally held by TikTok content creators.

Instead of singling out TikTok, Bowman said, Congress should enact new legislation to ensure social media users are safe and their data secure.
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