On Wednesday, President Biden signed legislation that would force the Chinese-based owner of TikTok to sell the app or face a ban in the United States.
We’re not here to tell journalists — or anyone else — to use TikTok. (Though if you do, be sure to check out our security tips for newsrooms that use the app.) In fact, there’s plenty of reason to recommend against using the platform, from its mining of users’ highly personal data to its disturbing content. TikTok has admitted that employees have spied on reporters and cut back on its already minimal commitment to transparency.
Nevertheless, banning TikTok is wildly unconstitutional. Worse yet, it could set a precedent that empowers the government to censor or outlaw news outlets, too.
Congress and President Biden would apparently rather look tough on China than take a stand for free expression. But the First Amendment may still end up stopping the TikTok ban in court. Here are the five strongest arguments for why the law is unconstitutional.
1. The First Amendment forbids the government from banning speech it disagrees with, even if the government labels it foreign propaganda.
Lawmakers say that they’re justified in forcing a sale of TikTok because China could require its current owner to push pro-Chinese Communist Party propaganda. But even if there was evidence that TikTok was promoting Chinese propaganda (more on that later), this justification wouldn’t pass First Amendment muster.
As we and others have repeatedly pointed out, Americans have a First Amendment right to receive information, including from foreign governments. There’s good reason that the Supreme Court has protected that right: Allowing the government to forbid Americans from hearing whatever the U.S. deems “propaganda” would give our government the power to censor any foreign viewpoint it finds objectionable, such as op-eds by a foreigner.
Simply put, trying to stop Americans from being exposed to Chinese propaganda because you’re concerned they may be persuaded by it isn’t an acceptable reason to ban speech.
2. The government can’t get around the First Amendment by forcing divestment, rather than banning TikTok outright.
Some have argued that the TikTok law is on stronger First Amendment footing because it doesn’t outright ban TikTok — it merely forces it to be sold.
That’s wrong. TikTok’s content moderation decisions are editorial judgments that are protected by the First Amendment, just like a newspaper’s decisions about what stories to print. When the government tries to change those editorial decisions by forcing a change in who is making them — which is exactly what it’s said it wants in the case of TikTok — that implicates the First Amendment, even if the app isn’t banned.
Still not sure? Just look at how much Twitter changed when Elon Musk bought it and transformed it into X. Or imagine if a Republican president forced The Guardian to sell itself to an "approved buyer" because its editorial board is too left-leaning. Even if it’s not a ban, it’s still government interference with The Guardian’s speech.
3. Americans have a First Amendment right to speak using TikTok.
Americans don’t just have a First Amendment right to receive information through TikTok. They also have a First Amendment right to speak there. Millions of Americans use TikTok to express themselves, including journalists. Banning TikTok would act as a prior restraint on users, preventing them from speaking before they can even post.
The Supreme Court has held that prior restraints are forbidden in all but the most extraordinary circumstances. It’s impossible to imagine that most users’ posts would meet that standard. Banning TikTok would impose a prior restraint on users without regard to whether their speech, specifically, threatens national security (the claimed justification for the TikTok law) or presents any risk at all.
It’s true that TikTok users could post elsewhere. But the First Amendment forbids the government from banning an entire medium of expression without a very good reason.
This protection prevents the government from cutting people off from expressing themselves using the methods that they believe are most effective. Many people use TikTok because it provides them with something unique — whether it’s the large audience and particular demographics that use the app or the format of TikTok posts.
4. “National security” isn’t a magic wand that the government can waive to nullify the First Amendment.
On rare occasions, First Amendment rights can be overcome by a government interest that’s important enough. When laws target speech based on their viewpoint or content, they must be justified by a compelling government interest.
The TikTok ban law is both viewpoint- and content-based. The government has made clear that it wishes to change TikTok’s owner to one approved by the U.S. because it objects to the content of speech on the service and the viewpoints it believes TikTok is pushing on users.
To justify banning TikTok, the government claims that it threatens American national security by allowing the Chinese government to influence TikTok users. The problem with this argument is twofold. First, it’s basically just a rehash of the claim that the government can ban foreign propaganda, which it can’t. Second, the government hasn’t presented any evidence that TikTok harms national security.
The government has loudly and repeatedly proclaimed that China has the capability to use TikTok’s algorithmic amplification to promote pro-Chinese propaganda, to the detriment of American interests. But when it comes to actual evidence that the Chinese government is actually doing this, and that our security is at risk as a result, the record is scant.
The government often claims that speech could pose a national security threat, but that threat almost never materializes.
Does the government have any actual evidence this time that TikTok poses a threat? Unfortunately, the public isn’t allowed to know. In March, the Senate held a closed-door hearing where senators were reportedly briefed on the national security risks TikTok creates, but ordinary Americans remain in the dark about what was discussed at the briefing.
Public comments by senators, however, offer hints. And the evidence basically boils down to this: TikTok is collecting Americans’ data and has the ability to target and amplify pro-Chinese propaganda. This is already public information, and it doesn’t show a concrete threat.
5. There are less restrictive means to deal with TikTok’s problems.
Finally, the First Amendment often requires the government to show that speech-restrictive laws are narrowly tailored to prevent a particular harm.
Concerns about TikTok’s data collection and sharing with the Chinese government could be addressed in multiple ways that don’t restrict speech, from requiring TikTok to store data in the United States to actually enacting a real privacy law that would prohibit all social media companies from amassing troves of sensitive personal data on users.
Foreign propaganda can be addressed by counterspeech and reducing government secrecy, rather than banning speech.
Instead of trying to deal with TikTok’s very real issues in any of these ways, Congress has wasted time passing an unconstitutional ban. Courts will have ample reasons to strike down the TikTok law, and everyone who cares about the First Amendment and press freedom should hope that they do.
