DAVID BETRAS: First Amendment protects TikTok

The 170 million Americans who regularly scroll through TikTok, the platform that hosts videos of precocious cats, people dancing or at least attempting to, and influencers touting a dizzying array of products, would find it hard to believe that the immensely popular app is, in reality, a grave threat to our national security.

But according to the overwhelming bipartisan majority in the House of Representatives that recently passed “The Protecting Americans from Foreign Adversary Controlled Applications Act,” that’s exactly what TikTok is and why it must be banned in the U.S. unless ByteDance, the Chinese company that owns the immensely popular app sells it to a buyer approved by the federal government no later than six months after the legislation becomes law.

Those who support the legislation, including many Senate Democrats and Republicans as well as President Joe Biden, make it clear that they are not worried about the videos now posted on the platform. They are, however, deeply concerned that at some point in the future the Chinese government will harvest and use the trillions of bytes of data gathered from the millions of Americans who visit the site each week to spread misinformation about important issues and manipulate our elections.

What TikTok is saying

While TikTok denies the allegations and has claimed repeatedly that it takes extraordinary steps to protect users’ data, sponsors of the legislation and other supporters, including FBI Director Christopher Wray assert that TikTok is a very real danger. In testimony before the Senate Intelligence Committee Wray said the Chinese government could use the app to control software on millions of devices, among other concerns. “We’re not sure that we would see many of the outward signs of it happening if it was happening,” he said.

The Constitutional issues raised by the legislation, including the use of prior restraint and the lack of clear evidence that TikTok is a threat, have created some strange legal bedfellows. Both the ultra-conservative Cato Institute and the liberal American Civil Liberties Union (ACLU) contend banning TikTok would violate the First Amendment rights of users as well as the company.

“Calls to ban TikTok typically raise constitutional concerns not only over potential government actions’ impact on TikTok but also for the potential impact on the First Amendment rights of other companies (like the American‐owned app stores that carry the app) and its users.

TikTok and the First Amendment

Americans would lose a platform they have chosen for expression and app stores would have dictated to them what they could not carry by the government,” Cato’s Jennifer Huddleston wrote in a recent blog.

Attorney Ashley Gorki of the ACLU agreed. “Banning TikTok, directly or indirectly, would violate the First Amendment because it would stifle free expression and restrict the public’s access to a critical source of information. The government can’t impose this type of total ban unless it’s the only way to prevent extremely serious and immediate harm to national security.

There’s no public evidence of that type of harm. And even if there were, a total ban on TikTok wouldn’t be the only answer.”

Suppose the bill passes and results in a ban. In that case, the courts will use the strict scrutiny standard of judicial review to determine if a compelling national security interest was at stake and if the steps taken to protect those interests were narrowly designed to avoid violating the right to equal protection under the law. I agree with the legal scholars who believe the perceived threat presented by TikTok falls short of meeting that standard and the ban is an unconstitutional overreach. I would also note that several judges who have blocked previous state and federal attempts to ban the app have agreed with that position.

That means that thanks to the First Amendment TikTok will most likely remain available for U.S. users to enjoy. Someone should post a video thanking the Founding Fathers.

David J. Betras can be reached at 330-746-8484 or dbetras@bkmlaws.com.