Blog Post

A national TikTok ban and the First Amendment

March 22, 2024 | by Scott Bomboy

The recent House passage of a bill banning TikTok from app stores in the United States has ignited a national constitutional discussion about free speech and public security.

On March 13, 2024, the House of Representatives passed the TikTok ban, with bipartisan support, in a 352-63 vote. The Senate will now consider the Protecting Americans from Foreign Adversary Controlled Applications Act. President Joseph Biden has stated that he would sign the law if the Senate passes it.

The law would block TikTok from the Apple and Google marketplaces until its parent company, ByteDance, sells the app. Lawmakers supporting the law are concerned that the company’s Chinese-based ownership could be forced to share the app’s user data with the Chinese government. Currently, an estimated 170 million people in the United States have downloaded the TikTok app.

The proposed law faces an uncertain future, with efforts under way to spin the app off to new ownership before the law is signed, and Senate’s approval is yet to be determined. But if the law were to go into effect, a long legal fight is a reasonable certainty, with the Constitution’s First Amendment taking center stage.

Executive Actions

In September 2023, the Congressional Research Service reviewed the legal issues associated with the proposed TikTok ban in advance of the House vote, including issues related to efforts made by the Trump and Biden administrations to regulate TikTok using existing statutes and executive powers.

After declaring a national emergency based on threats to the nation’s supply chain, President Donald Trump issued an executive order in August 2020 that allowed the Secretary of Commerce to ban transactions that placed TikTok in a mobile app store. Lawsuits followed from TikTok, its owners, and a group of TikTok users. Separate lawsuits were also filed challenging a similar ban on the WeChat app, which is also based in China.

Two district courts ruled that the Trump administration exceeded its authority with its interpretations of the International Emergency Economic Powers Act. The courts concluded that the administration had effectively banned TikTok. But two exceptions under the act allowed TikTok to provide a platform for personal communications and the exchanged of materials. In the case involving WeChat, a district court ruled that the administration’s actions burdened “substantially more speech than is necessary to serve the government’s significant interest in national security, especially given the lack of substitute channels for communication.”

The Biden administration remained interested in issues involving TikTok and national security—with the administration using a committee chaired by the Secretary of the Treasury to evaluate foreign investments that present national security risks. TikTok and ByteDance have objected to any potential use of those powers as violating the Fifth Amendment’s Takings and Due Process Clauses. Talks are ongoing between the committee and TikTok.

Controversies in Lower Courts

The national government isn’t alone in looking at a domestic TikTok ban. In May 2023, Montana lawmakers passed a ban on TikTok within the state.  But on Nov. 30, 2023, a federal district judge issued a preliminary injunction against SB 419, the state law, keeping it from going into effect.

In his opinion, Judge Donald W. Molloy of the U.S. District Court for the District of Montana concluded that TikTok and a group of TikTok users were likely to succeed on their First Amendment, Supremacy Clause, and Commerce Clause claims against the state. Judge Molloy was skeptical of Montana’s argument that the TikTok ban sought to protect consumers. “The current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” Molloy wrote.

The judge was presented with several First Amendment arguments. TikTok believed that the ban restricted free speech and failed under strict scrutiny, a test that requires the government to show a compelling interest that is narrowly tailored in the least-restrictive manner.

TikTok also said if the SB 419 was considered as content neutral, a less-restrictive test called intermediate scrutiny still applied. Under intermediate scrutiny, the law must further an important government interest by means that are substantially related to that same interest. The law also must leave open ample alternative channels of communication. The state did not think SB 419 affected free speech, but if the court decided to use a test, the state argued that the court should use the least-restrictive test possible.

Judge Molloy did not wholly agree with the those arguments, but he concluded that SB 419 violated the First Amendment. “Although neither side is completely correct, the State has the better argument as to the level of scrutiny that should be applied. However, even applying intermediate scrutiny, the State fails to show how SB 419 is constitutionally permissible.” Molloy stated that SB 419 burdened more free speech than necessary and did not “leave open any alternative channels for targeted communication of information.” The state of Montana has appealed Judge Molloy’s decision.

In a second case, a federal judge in December 2023 upheld a TikTok ban in Texas that applies to state-issued devices and state networks, including public universities. Judge Robert Pittman dismissed a lawsuit from the Columbia University’s Knight First Amendment Institute. Pittman said that the case differed from the lawsuit in Montana since the Texas ban was limited to state employees who had alternative ways to use TikTok.

Pittman reasoned that court precedent showed state-owned networks were non-public forums. “Texas has decided to limit access to TikTok on state-owned devices and networks due to concerns that the Chinese government may have access to sensitive data from TikTok users. Thus, Texas is restricting access to governmental property due to security concerns,” Pittman concluded.

For now, the national ban on TikTok is in the hands of the United States Senate, where its leaders have indicated that they will take their time reviewing the proposed law. While other legal arguments will be made opposing or supporting the ban, the core arguments related to censorship and the First Amendment explored by the lower courts will come into play during the public debates about the Protecting Americans from Foreign Adversary Controlled Applications Act.

Related Podcast: Can the government pressure private companies to stifle speech?

Scott Bomboy is the editor in chief of the National Constitution Center.

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