The impact of the upcoming ban on TikTok within the United States on free expression is breathtaking and unprecedented. This month, the U.S. Court of Appeals for the District of Columbia Circuit upheld a federal law requiring TikTok to stop operations here on Jan. 19 unless its owner, ByteDance, sells it to a non-Chinese company. The 150 million Americans who use TikTok to share and receive information would now not have the opportunity to achieve this.
By upholding the law, the D.C. Circuit Court of Appeals minimized the first Amendment impact of TikTok's ban while uncritically accepting the federal government's claim that national security was threatened by the app.
This is the primary time in history that the federal government has banned a communication medium. This isn’t simply about banning a single newspaper or publisher, which might itself be deeply troubling under the first Amendment, but about banning a platform where billions of videos are uploaded yearly. As District Court Chief Justice Sri Srinivasan said in a concurring opinion, the TikTik ban will lead to large numbers of individuals on this country “denying access to an outlet for expression, a source of community, and even… loses a source of income.” ”
The decision emphasized that TikTok is controlled by a “foreign adversary,” the People’s Republic of China, and that individuals outside the United States have no rights under the 1st Amendment. But this violates the rights of millions of TikTok users in this country to post on the site and receive information.
Additionally, the Supreme Court has long made clear that a speaker's identity should not matter under the 1st Amendment. This was the basis for Citizens United's decision that corporations have the right to spend unlimited amounts on election campaigns. The central premise of the 1st Amendment is that more speech is inherently better, regardless of the source.
National security
The appeals court recognized the impact of the TikTok ban on free speech, but concluded that the ban was justified by national security considerations. In doing so, the court reiterated the need to show great “reverence” to the government and its “assessment of the facts” regarding TikTok.
The district court identified two national security concerns. First, China would use TikTok to “collect data from and about individuals in the United States.” It is undisputed that China is doing this, but the question the court does not answer is how this data can be used to harm national security. The court points out that China is capable of using the data for “commercial” advantage, but that seems very different than showing that China can gain a national security advantage by knowing what Americans are on Upload and watch TikTok.
The court's second reasoning is even more problematic: China will “secretly manipulate content on TikTok” in order to “undermine democracy” and “expand the influence of the People's Republic of China abroad.” The court said China “threatens to distort freedom of expression in an important communications medium.”
Under this rationale, the United States could ban the publication in that country of a foreign newspaper or book published in another country because it is viewed as undermining democracy. In effect, this justification would allow the federal government to ban any book published by the Chinese government, as it could be viewed as an attempt to “expand the influence of the People’s Republic of China” in the United States. The government should never have the power to censor speech because it doesn't like the message being expressed.
Save TikTok
There are still several ways to save TikTok in the USA. There will certainly be an appeal to the Supreme Court. The justices could grant expedited review and decide the case by Jan. 19, or they could temporarily suspend the law's entry into force until they hear and resolve the matter by the end of the court's term at the end of June. Because of the unique and important issues raised, the case requires the attention of the Supreme Court. Of course, it is uncertain whether the judges will view the law differently than the federal appeals court judges. There is a long history of judicial deference to the government when it cites national security as justification for its actions.
Another possibility is that President-elect Donald Trump tries to save TikTok after his inauguration, a day after the TikTok ban is scheduled to take effect. Trump has explicitly stated that he wants to do this, but it is unclear how he might achieve this. He can't repeal the law banning TikTok; This would require a resolution from Congress. He could order the Justice Department not to enforce the law.
However, it’s doubtful that this could be enough reassurance for corporations like Apple and Google to proceed making the TikTok app available, despite being aware of the potential liability for doing so. According to the law, if there’s a sale or restructuring of TikTok's ownership, Trump can assume that the corporate is not any longer under foreign control and permit it to operate. If a deal is within the works, the president can grant a one-time 90-day extension before the ban takes effect.
It seems highly unlikely that the Chinese government will comply with a sale or restructuring of TikTok. And its cost is astronomical: about $200 billion.
The TikTok case is a difficult case and involves questions that the courts have never faced before. But when the impact on speech is so vast and the rationale for the restrictions so speculative, one can only conclude that the D.C. Circuit has struck the unsuitable balance. The Supreme Court should correct it.
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