Could a TikTok Ban Be a Second Patriot Act?

The great irony is that, despite all the fear-mongering spewed out about Donald Trump ending democracy, it is mostly the Democrats who are taking shots at its most sacred freedoms: those of the First Amendment.

The House recently passed a bill, HR 7521, seeking to “ban” the popular app TikTok from America’s smartphones. The logic works like this: TikTok is owned by a Chinese company. Chinese companies are under the control of the Chinese Communists. Therefore, TikTok is brainwashing American youth while at the same time gathering their personal data for some undefined yet assumed nefarious use. TikTok thus should be banned.

No evidence has been presented for any of the assertions listed—no evidence the Chinese government exerts direct control over TikTok, whose contents are 100 percent user-created, no evidence the app has any purpose other than to make money, and no evidence the app collects data to use it in some way, nefarious or not. It just feels scary and bad, as in any other red scare, so the House moved to ban it. The Senate votes soon, and Joe Biden says he will sign the bill if it reaches him.

This is not the first time the government has tried to ban TikTok. In 2021, President Donald Trump issued an executive order against TikTok that was halted in federal court when a judge found it was “arbitrary and capricious.” Another judge characterized the national security threat posted by TikTok as “phrased in the hypothetical.” When the state of Montana tried to ban the app in 2023, a federal judge said that it “oversteps state power and infringes on the constitutional rights of users,” with a “pervasive undertone of anti-Chinese sentiment.” Candidate Trump now opposes the TikTok ban.

You’d think that was enough for TikTok. Yet note the ban is just on a Chinese company owning the app, and the bill allows for an American company or ally to buy TikTok and go on its merry way. It’s not a ban; it’s a hijacking. And don’t think the Chinese won’t find an American app to retaliate against. Listening, Apple and Android?

But that is not where the true First Amendment challenge lies, though “banning” the app can itself be seen as restricting speech in its raw form. The real challenge lies in the details of the TikTok bill, which proves to be another Patriot Act in hiding.

Section 2(a)(1) of the bill prohibits “foreign adversary controlled applications” (FACA) from operating in the U.S. The prohibition applies not just to the app itself but to app stores and Internet hosting providers. There’s even a provision for a penalty of $5,000 per user fine; TikTok has 170 million users.

Effectively, the bill creates a federal government kill switch preventing distribution of “prohibited” apps or websites at the hosting level—clear top-down central government censorship of speech, and absolutely unconstitutional under the First Amendment. Unless, of course, the weasel excuse is used that the actual killing of the imported app is carried out by Apple and Google as proxies without being touched by the Feds, the same trick currently used to gather American citizen data, in addition to direct hoovering up of material by the NSA on a scale the Chinese can only dream of.

What is a “foreign adversary controlled application” under Section 2(g)(3) of the new bill? Any social/content-sharing website, desktop app, mobile or VR app that has more than a million monthly active users creating content is a FACA when two conditions are met: First, if it is “controlled by a foreign adversary” or a subsidiary of or a successor to an entity controlled by a foreign adversary. Second, if the President determines it “presents a significant threat to the national security of the United States.”

The term “controlled by a foreign adversary” means that the company (a) is domiciled in, headquartered in, or organized under the laws of a foreign adversary country; or (b) has a 20 percent ownership group from one of those countries; or (c) is “subject to the direction or control of a foreign person or entity” from one of those countries (Section 2(g)(1). “Adversary” is currently defined elsewhere in the U.S. Code as Russia, China, North Korea or Iran, but can be changed to someday be, say, France (remember “Freedom Fries”?)

There in the details lies the real challenge to the First Amendment, a set of vague criteria that allow the president to ban websites and apps based on his own finding of threat. No appeals, no due process. Censorship.

Americans have a right to speak freely, and to listen/read/watch freely and make up their own minds. The Supreme Court in Lamont v. Postmaster General already ruled in 1965 that this right even extends to foreign propaganda (the case involved Soviet propaganda materials passing through the U.S. Mail.) In addition, the irony of the U.S. government showing concern for what a foreign company might do with user data when in the U.S. such data is openly for sale, including to the government itself, cannot be dismissed. The TikTok ban is bad law, probably unconstitutional, and generally unconscionable.

The TikTok bill is not the only current challenge to the First Amendment. As exposed by the Twitter Files and elsewhere, for years the Biden administration worked hand-in-glove with the big tech social media companies, Jack Dorsey’s old Twitter in particular, to censor speech. Various agencies, including those responsible for Covid-19 policy, would contact the media companies to demand wrongthink posts be taken down. Particularly offensive were conservative posts questioning the efficiency and safety of the Covid vaccine, and those dealing with election fraud.

The question of whether or not the government can do that—demanding specific online speech be killed—reached the Supreme Court, and oral arguments were held earlier this month in the case of Murthy v. Missouri. The Court seemed skeptical of the idea that such action by the government was unconstitutional on its face, as the states claimed. Instead, the justices’ questions seemed to lean toward how the censorship was done.

The government was free to persuade social media carriers, cajole them, argue with them but as long as the government did not force them to take something down, it was likely legal. The states contend the looming power of the federal government made each request, however bland and polite, into a threat. Same as when the mafia thug in the movies says, “Nice place you got here, hate to see anything happen to it if you’re late paying us.” In one interaction a government watchdog seeking to deep-six some posts stated, “the White House is considering its options” if the “voluntary” take down effort fails.

There was room for debate. Justice Alito stated, “When I see the White House and Federal officials repeatedly saying that Facebook and the Federal government should be partners…regular meetings, constant pestering…. Wow, I cannot imagine Federal officials taking that approach to print media.” Alito also thought the barrage of emails from the White House and others to the social media companies may have met the legal standard for coercion.

The states agreed, saying, “Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully… We don’t need coercion as a theory. The government ‘cannot induce, encourage or promote’ to get private actors to do what government cannot: censor Americans’ speech.”

Justice Ketanji Brown Jackson replied, “Whether or not the government can do this…depends on the application of our First Amendment jurisprudence. There may be circumstances in which the government could prohibit certain speech on the internet or otherwise. My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.”

Justice Barrett seemed uncomfortable with the lower courts’ conclusion that the Biden administration could be banned not only from “coercion,” but also from any action that “significantly encourages” platforms to take down protected speech. “Encouragement would sweep in an awful lot,” she said.

Interactions between administration officials and news outlets are part of a valuable dialogue that is not prohibited by the First Amendment, said Justices Kavanaugh and Kagan. The Justices suggested instead there is a role for vigorous efforts by the government to combat bad speech, for example discouraging posts harmful to children or conveying antisemitic or Islamophobic messages.

The remarks of Brown et al. are frightening from a constitutional point of view, basically saying when the government is ineffective in creating dominant content of its own to address public messaging (i.e., “vaccines are safe”) it justifies proxy censorship to eliminate counter information.

A Supreme Court decision is expected in June.

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