Free Speech and TikTok
Free speech matters.
Hopefully cooler heads will prevail on Congress’ attempt to ban TikTok now that some time has passed from House debate and passage of a bill, H.R. 7521, forcing ByteDance’s divestment of TikTok or a complete ban of the social media platform in March on a 352-65 vote. The vote came after the Members were herded into a closed-door classified briefing from intelligence officials on national security concerns about TikTok's Chinese ownership. The fearmongering worked.
Members of Congress have embraced the idea of taking away access of well over 100 million Americans to TikTok, despite no information in the public domain pointing to the allegation that TikTok is a threat to national security. This ban would clearly decimate bedrock Constitutional principles, destroy small businesses that rely on the platform to make money and simultaneously unfairly promote Facebook, TikTok’s primary competition.
Former President Donald Trump correctly recognized that this bill would be a staggering gift to Facebook, crushing their competition in the marketplace. Trump argued on Truth Social that “If you get rid of TikTok, Facebook and Zuckerschmuck will double their business….They are a true Enemy of the People!” Crony capitalism again rides roughshod over the American political landscape. Facebook thrives and freedom of speech perishes.
The debate over TikTok and the push to ban them from the U.S. public domain must be put into Constitutional perspective. Although the Chinese government has no right to free speech in the U.S., the millions of American citizen users of the platform have rights recognized and protected by the First Amendment. Banning TikTok poses a dire threat to the Constitution that must not be glossed over behind closed doors or elsewhere.
TikTok’s opponents shriek without a shred of proof that TikTok pushes propaganda campaigns targeting American citizens, painting TikTok as the Devil intent on destroying us all through Swiftie dance party videos, presumably. These harpies of doom ignore documented proof that Russians used American-owned Facebook to push propaganda. Duplicity is the coin of the realm in 2024. President Joe Biden, true to his legacy of being perhaps the most waffling President in history, gleefully uses TikTok to reach young voters for his campaign – while simultaneously promising to sign any bill banning TikTok. Uncle Joe feels strongly both ways, just ask him twice.
The argument that TikTok is a threat to America is belied by the fact that no one can point to any instances of TikTok exploiting user data stored in the United States by Oracle, an American corporation, to harm Americans.
The true evil and danger is that HR 7521 legislates content based prior restraint of speech – banning speech before it can be made. Prior restraint of speech based on content is almost always a violation of the First Amendment. The conclusion is obvious – banning TikTok violates the First Amendment, our most cherished individual freedom. The Supreme Court decided long ago that the government can’t impose this type of total ban on ideas unless it’s necessary to prevent serious, immediate harm to the social order.
Even if such harm exists, and there is no evidence that they do, prior restraint on the freedom of speech via the proposed ban would not be the only option for addressing that harm. A ban on an entire social media platform eliminates the flow of information, art, and communication that would otherwise be provided. The interference with users and their interconnections with other users here and abroad would be devastating to the free flow of knowledge and ideas that are at the very core of what the First Amendment protects.
History is replete with numerous examples clearly demonstrating that under the First Amendment, speech that is repellent is just as important and legal as speech that is popularly acclaimed and beloved. The Constitution protects the ugly so that the beauty of freedom and liberty can flourish. A ban on TikTok is government regulation of not just speech, but of thought. This cannot stand. The Supreme Court has recognized the connection between speech and thought and has steadfastly protected the right to freedom of speech. First Amendment freedoms are most imperiled when government seeks to control thought or to justify its laws for that impermissible end. Justice Kennedy sagely opined “the right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
Fear is not a legitimate basis for legislation. The fear mongering and paranoia surrounding the debate over banning TikTok obfuscates the First Amendment issues in play when you remove access to over 100 million Americans right to use that platform to express viewpoints.
DelValle is a D.C. based constitutional law, technology law, and international law litigator. He is a native Texan who grew up on the Gulf Coast of Florida, graduated from Penn State University and worked as a nuclear power engineer prior to graduating cum laude from Washington and Lee University School of Law.
