Is the TikTok Law a Violation of the First Amendment?

On April 24, 2024, President Biden signed as part of a foreign aid package passed by Congress a law that could ban the video app TikTok. But can the federal government ban an entire social media platform or other form of communication? Or does that violate the First Amendment?

Because it’s almost certain that one or more lawsuits will be filed, we explore whether banning TikTok violates the First Amendment.

What does the TikTok law do?

The law was originally proposed as HR 7521, the Protecting Americans from Foreign Adversary Controlled Applications Act. The law that passed is a modified version of that proposal. It has been described as a “TikTok ban,” but it’s a little more nuanced than that.

The law applies to more than just TikTok. It uses the term “foreign adversary-controlled application,” which specifically includes TikTok and its China-based owner ByteDance. But it also includes any app:

* With more than 1 million monthly active users who can generate content for others to see.

* That is controlled or at least 20% owned by a “foreign adversary country” (currently defined as China, Russia, Iran and North Korea).

* That, after going through a prescribed process, is determined to be a threat to national security.

It doesn’t say TikTok or other foreign adversary-controlled applications cannot operate – but it functions that way. ByteDance or any other owner or distributor of an app meeting this definition will have up to one year to sell their app or face a one-time penalty of $5,000 per user. TikTok has more than 150 million users in the United States, so it would have to pay $750 billion to continue operating. But even if it wanted to operate, the same penalty applies to anyone who distributes TikTok, and no app store would make it available to users when faced with that penalty.

Does the TikTok law really ban TikTok?

The law’s supporters are quick to say it is not a ban – but a choice. It’s up to ByteDance to decide whether to sell the company, stop operating in the United States or pay a massive amount to continue operating.

Opponents say that the impact is clearly a ban. The penalty for continuing operations in the United States is so high that ByteDance really has no other choice than to sell the company or stop operating in the United States. And even if ByteDance is willing to view the massive fine as a cost of doing business, TikTok will be impossible to find in any app store. As the ACLU, the Center for Democracy and Technology, the Electronic Frontier Foundation, and Fight for the Future said in a joint letter to the original bill’s sponsors, “Generally, the government cannot accomplish indirectly what it is barred from doing directly, and a forced sale is the kind of speech punishment that receives exacting scrutiny from the courts.”

Does the TikTok law raise First Amendment issues?

Supporters also argue that, even if the TikTok law is viewed as a ban, it does not raise any First Amendment issues because it is not targeted at content found on TikTok. Instead, the TikTok law addresses ByteDance’s actions – specifically the alleged collection of users’ personal information, which critics say is then given to the government of China to use in destabilizing the United States by flooding our social media platforms with disinformation.

Either way, the law does raise First Amendment questions. It’s just a question of how much scrutiny the law will get as opposed to whether it will be scrutinized under the First Amendment at all.

If a court accepts the supporters’ argument, the law is likely to be viewed as “content neutral” because it clearly has an incidental impact on the speech and expression of ByteDance, of TikTok creators and of TikTok users. The law would then be subjected to what is known as “intermediate scrutiny” from a court, meaning the government would have to demonstrate that there is a substantial need for the law and that the law serves that need.

But it’s more likely that a court finds the law is “content based” and requires the government to meet the higher “strict scrutiny” standard involving a compelling need for this restriction on speech that can only be accomplished through this forced sale or withdrawal of TikTok from the U.S. market.

As opponents have noted, the law effectively seeks to change the ownership – and editorial control – of TikTok. And, further, the effect on TikTok creators and users would in no way be “incidental.” The law entirely restricts their content creation and consumption, something that wouldn’t be tolerated in any other media. Telling TikTok creators and users shut out from their favorite platform that they can use any other option is no different than telling someone they can no longer shop at their favorite bookstore – but could go anywhere else – or can’t read their favorite newspaper – but could subscribe to any other available paper.

The U.S. Supreme Court has addressed this issue in two cases:

* In 1965, the court decided Lamont v. Postmaster General. The case involved a law saying any piece of mail from a foreign country that was designated as “Communist political propaganda” would be held at the post office until the addressee confirmed they would like the mail to be delivered to them. To comply with the law, the post office would mail the addressee a card notifying them that foreign Communist propaganda was waiting for them and telling the addressee that the material would be destroyed if they didn’t respond within 20 days. The court ruled that even this national security-based delay in the delivery of mail violated the recipient’s First Amendment right to receive information.

* In 2017, the court held in Packingham v. North Carolina that a North Carolina law that prohibited registered sex offenders from using the Internet violated that same First Amendment right to receive information.

Do we really need this ban?

Should the law be challenged in court, the burden will be on the government to demonstrate a need for the law, regardless of which standard of review a court applies. This usually involves identifying some clear harm that comes from TikTok content.

The House of Representatives’ report on the initially proposed bill claims the law is necessary to protect national security and users’ personal privacy. These dangers come from adversary countries who “collect vast amounts of data on Americans, conduct espionage campaigns, and push misinformation, disinformation, and propaganda on the American public.” Its primary sponsor, Rep. Mike Gallagher of Wisconsin, has cited “the potential for this platform to be used for the propaganda purposes of the Chinese Communist Party.”

Another reason given is the danger that TikTok poses to children. Rep. Raja Krishnamoorthi of Illinois, a co-sponsor, says TikTok promotes “drug paraphernalia, oversexualization of teenagers” and “constant content about suicidal ideation.”

While both reasons may seem, on their face, to be valid – even substantial or compelling – First Amendment law requires more than just speculative fears of harm. The government will have to present clear, documented evidence – more than sporadic anecdotes – that children are mentally or physically harmed after viewing TikTok content. This will likely require expert testimony and comprehensive scientific studies demonstrating the connection between TikTok and harm to minors.

The same is true for claims that TikTok presents a threat to national security. Though courts are likely to give a bit of deference to the government here, the government will have to present actual proof that TikTok is being used to collect its users’ personal information, that ByteDance is taking that information and giving it to the Chinese government, and that the Chinese government is using that information in a dedicated propaganda campaign.

Is there any better way to protect national security than the TikTok law?

The most difficult hill for the government to climb would be demonstrating to a court that the law is the only way to protect children or avoid compromising national security. That’s because outright bans on speech are rarely successful in court.

One need look no further than earlier attempts to ban TikTok or other platforms owned by China-based companies.

In 2023, Montana Gov. Greg Gianforte signed Senate Bill 419 into law, banning TikTok throughout the state. A federal judge quickly ruled that the law violated the First Amendment because the law burdened more speech than necessary, leaving no other ways to obtain the same content, explaining, “The Legislature used an axe to solve its professed concerns when it should have used a constitutional scalpel.”

In August 2020, then-President Donald Trump issued an executive order banning TikTok from app stores. Separate lawsuits were filed by TikTok users and by the company itself. A similar ban was imposed on WeChat, a China-based messaging app. Both bans were struck down. As a federal district court judge wrote in the WeChat case, the bans blocked “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.”

A similar fate is likely to befall this TikTok law because there are better ways to achieve the goals of protecting children from harm and protecting our national security. These include:

* Enacting more comprehensive privacy protection measures. While controversial, the European Union’s General Data Protection Regulation focuses on how companies collect information, how they share that information, and how they disclose those practices, as a means of protecting personal privacy from abuse. This could be applied to all Internet sites or just those like TikTok that raise specific privacy and national security concerns.

* Even less invasive is changing U.S. privacy laws and regulations to say users must affirmatively “opt in” to agree to collection of their data instead of the current practice of allowing social media platforms and other Internet sites to collect their data unless the user “opts out.”

* Any social media platform in China or another foreign adversary nation could be required to make that ownership or control clear to allow users to be fully aware that their data may be at risk.

None of these are perfect solutions, but they do demonstrate the variety of alternatives to an outright ban. Another example is limiting the ban to government-owned or -issued devices or networks. Such a ban issued by the state of Texas was upheld by a federal judge in December 2023 because it afforded those who wanted TikTok other ways to do so, namely by using a personal device or a different Wi-Fi or data network.

Furthermore, it is questionable whether the TikTok ban would even serve those goals of protecting national security and individuals’ personal privacy, as well as ensuring that children aren’t exposed to harmful content. Other sites provide similar content to children. Other sites also collect personal data, with some making that data available for purchase by data brokers on the open market. So personal data from within the United States is likely to end up in the hands of the Chinese government even if TikTok is not owned by ByteDance or available in the United States.

What’s the bottom line on the TikTok law?

It is all but certain that this law will be challenged in federal court on several grounds. One of those will be that the law violates the First Amendment. Because the law will effectively make TikTok unavailable in the United States if ByteDance doesn’t sell the platform, that First Amendment challenge is almost certainly going to be successful. The only way the TikTok law can survive that court challenge is to show that it is not actually a ban on speech.

Kevin Goldberg is First Amendment specialist for the Freedom Forum in Washington, D.C. He can be reached at [email protected].