Crunch Time for TikTok and Americans’ Freedom of Speech

Update: Read the coalition letter joined by CDT and 15 other organizations opposing a TikTok ban.

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A nationwide ban on TikTok in the U.S. may violate the First Amendment and won’t protect users

TikTok may be operating on borrowed time in the United States, as Congress and the White House increasingly target the social media app. Both the House and Senate have proposed a flurry of bills aimed squarely at TikTok, some of which would ban the app entirely in the U.S. Others would give the President or federal agencies the authority to restrict or ban foreign-owned information technology services like TikTok, or impose transparency requirements on services that store data in China. The White House has demanded that the Chinese company that owns TikTok, ByteDance, sell the app to divest it of Chinese ownership, and has threatened to ban TikTok in the U.S. if it does not. All of this follows laws passed in several states and Congress that prohibit TikTok on government-issued devices. 

Lawmakers and the Biden administration say these steps are needed because TikTok may give the Chinese government access to private information about the app’s users and allow it to influence TikTok’s content moderation. TikTok denies these claims and, in any case, asserts they can be addressed through structural mechanisms of the sort it has proposed to the Committee on Foreign Investment in the United States (CFIUS).

It’s true that many social media platforms and other consumer-facing technologies, including TikTok, pose privacy concerns — and that governments, including China, use social media for disinformation campaigns or to otherwise try to influence public opinion. However, a nationwide ban on TikTok is not the answer to these concerns. Banning TikTok would undermine free expression in the United States and abroad, and it would not solve the problems the government believes TikTok creates.

A nationwide ban on TikTok would raise serious First Amendment concerns by directly restricting users’ ability to speak and receive information. Americans — especially younger Americans — use TikTok to both spread and find information about many important topics, including police brutality against Black people, LGBTQ rights, labor movements, the experiences and rights of people with disabilities, reproductive health, campus safety, and environmental policy and climate change. Some users participate in our democracy through TikTok, by hosting or viewing voter registration campaigns or subscribing to official accounts of political candidates, elected officials, or government entities.

The Supreme Court has long recognized that the First Amendment protects not only the right to speak, but also the right to receive information – including the right to receive information from abroad. For example, in the 1960s, the Supreme Court struck down a federal law requiring the Postmaster General to detain “communist political propaganda” printed or prepared in a foreign country and mailed to the U.S., notify the addressee, and deliver the mail only upon request. Recognizing the likely deterrent effect of requiring an addressee to affirmatively request delivery of materials the government had labeled as communist propaganda, the Court held that the law violates the First Amendment. It explained that the government cannot “control the flow of ideas to the public,” including ideas (even propaganda) from abroad.

The Court has also held that prohibiting too much protected speech can violate the First Amendment, especially if a law forecloses a unique and important means of communication. These First Amendment limits ensure that people can exercise other First Amendment rights of speech, press, and assembly and protect Americans’ participation in our democracy. For example, voters who are informed about political candidates and issues are better able to exercise their right to vote.

While other online services may remain available, a TikTok ban would foreclose users from speaking and receiving information through an important and distinct medium of expression. TikTok’s users choose to use the app to reach particular audiences, especially young people connecting with other young people, and because of its distinctive capabilities for communication. Just as the Supreme Court has recognized that bans on yard signs, pamphlets, or live entertainment are not permitted under the First Amendment simply because other means of expression remain available, a ban on TikTok suppresses a unique medium of expression and suppresses too much speech.

Banning TikTok in the U.S. would also be what’s known as a “prior restraint” on speech, or a limit imposed on speech before it happens. A ban would prevent the millions of Americans who use TikTok from being able to speak through the app in the future and would prohibit new users from downloading the app. This “freeze” on TikTok users’ speech would come with a heavy presumption against its constitutional validity. The Supreme Court has long recognized that the chief purpose of the First Amendment is to prohibit prior restraints and that prior restraints can be justified only by the most extraordinary circumstances. In the past, the Court has rejected even justifications based on national security interests, explaining that the First Amendment permits a prior restraint only when the government can demonstrate that “disclosure . . . will surely result in direct, immediate, and irreparable damage to our Nation or its people.”

Empowering the government to suppress TikTok nationwide may also mean giving it startling powers to censor, monitor, and screen other online services. While it is not clear how such a ban would be carried out as a technical matter, it could take the form of prohibiting app stores from carrying TikTok, potentially impinging on the First Amendment rights of app stores themselves (to make their own choices about what apps they host in their stores), as well as the rights of individuals to access communications apps. In addition, an app store prohibition may, ironically, create security risks for American TikTok users by preventing them from downloading updates to the app that fix security vulnerabilities. Alternatively, a ban may require internet service providers (ISPs) to engage in filtering to block the service from American users, furthering concerns about prior restraints and potentially opening the door to other types of censorial filtering at the ISP level.

Not only would a TikTok ban suppress the speech of Americans, but it would also provide other countries with a justification for banning online services that facilitate free expression in their countries. While a ban on an entire online speech service would be novel in the United States, other countries have unfortunately already adopted this approach to silence criticism and dissent. Turkey, for example, has repeatedly blocked social media sites such as YouTube and Twitter, citing national security concerns. Most recently, Turkey sparked outrage after constraining access to Twitter and TikTok following devastating earthquakes in that country and arresting scores of people for “sharing provocative posts.” A ban on TikTok in the U.S. would embolden governments worldwide — authoritarian and democratic alike — to impose their own restrictions on social media services in the name of privacy and national security. As a result, billions of people worldwide may lose access to the online services that provide easy to use, freely available outlets for their speech.

In addition to potentially violating the First Amendment and undermining free expression worldwide, a TikTok ban would not necessarily help protect Americans’ privacy. Even if banning TikTok would remove the Chinese government’s ability to collect data on Americans directly from the app, there are other avenues it could use to obtain this data. Private data brokers routinely sell data to American law enforcement and intelligence agencies and face no legal barrier to selling data from other social media apps to the Chinese government or its proxies – or other foreign governments or potentially hostile actors. If Congress is serious about addressing risks to Americans’ privacy, it could accomplish far more by focusing its efforts on passing comprehensive privacy legislation like the American Data Privacy and Protection Act.

Concerns that the Chinese government could put a thumb on TikTok’s content moderation decisions to spread disinformation and propaganda are also not appropriately addressed by a ban. Even if the Chinese government — or any foreign country — uses TikTok or other social media in this way, the First Amendment prohibits the government from banning a service because it disagrees with the viewpoints expressed on it. Instead, counterspeech, both in the form of investigations that reveal disinformation campaigns and speech responding to and debunking disinformation, are the better way to respond to this concern while preserving free expression.

It is also important that any action that the government takes against TikTok or any other online service that facilitates speech on the basis of national security be done transparently, with sufficient information made available to the public so Americans can judge for themselves whether the government’s action is necessary. Not only should the government be required to give a public explanation of its actions “if practicable” (as one proposed bill states), but there should be a strong presumption that the government must make the reasons for a ban or other restriction, and evidence supporting those reasons, publicly available. The government should not be able to keep its justification secret on the basis of nebulous or unjustified national security or law enforcement interests. The government’s reasons for taking action against a speech intermediary like TikTok would also be at the heart of a court’s consideration of a First Amendment challenge to those actions, since courts apply a high level of scrutiny to government restrictions on speech based on content or viewpoint.

In the midst of these debates over legislation to ban TikTok, the company has been negotiating a national security agreement with the Committee on Foreign Investment in the United States (CFIUS). According to reports by those briefed on TikTok’s proposal, nicknamed Project Texas, TikTok would create a new subsidiary based entirely in the United States that would control access to U.S. users’ data and content moderation decisions. The U.S. entity would be controlled by an independent board of directors selected by TikTok but approved by CFIUS, and the board would also report to CFIUS. Data from U.S. users would be hosted in the United States by Oracle, which would also oversee TikTok’s content moderation and recommendation algorithm in the U.S., and report potential risks to the government, “which will then have the authority to inspect the issue in more detail.”

Some have criticized Project Texas as not doing enough to protect Americans from Chinese spying and influence, and CFIUS has not, to date, approved the plan. It has negotiated with TikTok since 2019 and can reject the plan and order divestiture. If it becomes the basis for resolution of the concerns that prompted the CFIUS review, Project Texas may raise First Amendment problems of its own, particularly if it empowers the government to oversee and overrule a private online service’s editorial decisions about what content to host, bar, recommend, or deprioritize.

However, given the serious negative impacts of an outright ban on freedom of expression and the fact that it will not solve the privacy concerns that Congress claims motivate these bills, the government should consider other paths. If the government does not believe Project Texas sufficiently protects Americans’ interests, it should explain the basis for its objections and why no other mitigation measures can adequately address the risk. Suppressing speech should be used only as an absolute last resort, in response to a government interest of the highest importance. The U.S. government should not undermine online free speech with an ill-conceived ban that sets a dangerous precedent for the U.S. and countries around the world.