On March 23rd, 2023, Shou Zi Chew, the CEO of the social media platform TikTok, testified in front of the United States House of Representatives Committee on Energy and Commerce. For five straight hours, Chew was grilled by members of Congress, who raised several concerns about TikTok - primarily related to security concerns with the app, which stem from fears that the app is sharing American users' data with their parent company ByteDance. ByteDance has close ties to the Chinese Communist Party (Shephardson, 2023). Under China's Data Security Law, which regulates private Chinese corporations, any data the Chinese government believes is necessary for security can be accessed (Thayer, 2023).  

Concerns have only grown over the years and were highlighted by a 2022 BuzzFeed report that included leaked audio from a TikTok meeting. In the audio, TikTok's American staff can be heard saying they could only access American users' data with permission from their Chinese counterparts. Additionally, BuzzFeed reported that from September 2021 until January 2022, Chinese-based engineers had access to American users' non-public data (Thayer, 2023).  

In response to these security concerns, members of Congress have introduced legislation to regulate TikTok. The most notable piece of legislation is the RESTRICT Act, a bipartisan piece of legislation sponsored by Senators Mark Warner (D-VA) and John Thune (R-SD), which would give the U.S. Secretary of Commerce the authority to broadly regulate - and even go as far as to ban - technology produced by six adversarial countries. One of the six countries listed under the legislation is China. While the legislation does not mention TikTok by name, Thune has said that the bill could be used against the app and said, "I'm particularly concerned about TikTok's connections to the Chinese Communist Party, which repeatedly spies on American citizens." The Biden administration has voiced support for the RESTRICT Act (Wong, 2023).

Some Democratic members of Congress, most prominently Jamaal Bowman (D-NY), have come out against efforts to restrict, or ban TikTok. Bowman said such efforts are "an attack on the people who prefer this platform's freedom of speech." A spokesperson for the American Civil Liberties Union (ACLU) has said that a TikTok ban "is in violation of [citizens] First Amendment right to free speech." However, claims that a TikTok ban would violate the Constitution's First Amendment are incorrect. 

First, the company of TikTok does not have First Amendment rights. TikTok is not a newspaper or media company but a platform allowing third-party users to post videos. Users posting videos relating to activities such as dancing, cooking, or political commentary are protected under the First Amendment, but providing such a platform to users does not entitle TikTok to First Amendment protections. TikTok is simply a social media company - a subsidiary of ByteDance - allowing third-party users to post videos  (Thayer, 2023). While some of TikTok’s other actions, such as removing videos from their platform, may rise to the level of First Amendment protection, merely hosting third-party content does not necessarily provide the company with First Amendment protections. 

Such a ban would align with what the Supreme Court said in the 1986 case City of Renton v. Playtime Theatres, Inc. In that case, the Court upheld a Washington state law restricting adult movie theaters from operating within 1,000 feet of a school or residential area. In his opinion, then-Associate Justice William Rehnquist wrote: "'content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest...". A ban on TikTok would pass this test as it is content-neutral - meaning it does not ban any specific variety of speech. A ban on TikTok would not target or adversely impact one form of speech. It would have an equal impact on all uploaders, whether their genre is cooking, dancing, or animals. Joel Thayer, the President of the Digital Progress Institute, argued that a ban on TikTok would be constitutional if it “is narrowly tailored to serve a ‘significant government interest’ and leaves open reasonable alternative avenues for expression” (2023).

Opponents of a TikTok ban commonly cite the 2017 Supreme Court case Packingham v. North Carolina. In Packingham, the Supreme Court held that a North Carolina statute banning registered sex offenders from using social media violated the First Amendment, as social media sites are "protected spaces" equivalent to the "modern public square" (Id at 1736-37). However, the details of a potential TikTok ban differ significantly from Packingham. The statute in Peckingham banned using all social media sites (Thayer, 2023). In a situation where TikTok is banned, alternate social media platforms such as Instagram, Facebook, Snapchat, and Twitter would still exist. Additionally, alternate video-sharing platforms in the same model as TikTok would appear. TikTok was not the first platform of this variety: the precursors to TikTok were Vine and Musical.ly. Alternatives to TikTok, such as Clapper, already exist; if the app is banned, others will emerge. The existence of such alternative venues aligns with another critical component of Rehnquist's opinion in Playtime - that restrictions on the First Amendment are permissible as long as they do "not unreasonably limit alternative avenues of communication" (Id at 47).

Additionally, there is already precedent for a ban on companies with ties to hostile foreign governments. In 2020, the Federal Communications Commission (FCC) revoked the operating licenses of the Chinese technology companies Huawei, China Telecom, and ZTE. The U.S. Courts of Appeals for the District of Columbia upheld the FCC's decision to revoke the Chinese company's operating license, and the court did not raise any First Amendment concerns (Thayer, 2023). Such restrictions align with the 1982 Supreme Court decision, Clark v. Community for Creative Non-Violence, which upheld a National Park Service regulation prohibiting sleeping in Lafayette Park and on the National Mall. Associate Justice Byron White wrote that restrictions do not violate the First Amendment if "tailored to serve a significant governmental interest" (Id at 293). American national security would certainly qualify as such.

While a TikTok ban would be constitutional, that does not mean it would be the best possible solution. Increasing Americans' right to data privacy on all social media sites would be one possible solution. Another alternate solution would be the forced sale of TikTok to an American corporation. As a notable TikTok content creator myself - my account that covers the Supreme Court has more than 16,500 followers - I would be disappointed if the app was deleted. Ultimately though, there is nothing in the Constitution that protects TikTok. The future of the app is up to democratically elected leaders to decide.   

References

Shephardson, David. “TikTok congressional hearing: CEO Shou Zi Chew grilled by US lawmakers.” Reuters. Accessed April 10, 2023. https://www.reuters.com/technology/tiktok-ceo-face-tough-questions-support-us-ban-grows-2023-03-23/

Lee, Ella. “A US TikTok ban is gaining support in Congress. Why some say that would hurt free speech.” USA Today.  Accessed April 10, 2023. https://www.usatoday.com/story/news/politics/2023/03/23/tiktok-possible-ban-congress/11513920002/

Thayer, Joel. “Banning TikTok Outright Would Be Constitutional.” The Federalist Society. Accessed April 10, 2023. https://fedsoc.org/commentary/fedsoc-blog/banning-tiktok-outright-would-be-constitutional

Thayer, Joel. “On TikTok, It’s All Fun and Games Until China Wants Your Info.” The Wall Street Journal. Accessed April 10, 2023. https://www.wsj.com/articles/on-tiktok-its-all-fun-and-games-until-beijing-wants-your-info-china-ccp-national-security-app-store-apple-google-information-data-11658347613
Wong, Scott. “White House backs bipartisan bill that could be used to ban TikTok.” NBC News. Accessed April 10, 2023. https://www.nbcnews.com/tech/tech-news/restrict-act-bill-tiktok-rcna73682