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April 3, 2023

Does a TikTok Ban Violate the First Amendment?

Interesting debates emerge as Congress seeks to settle on legislation.

The most interesting debates in the federal legislature these days tend to be between Republican lawmakers. Debate is the key word. The art of debate has largely been lost between bipartisan opponents because Democrats and Republicans no longer seem to have any common ground.

The push to ban the social media platform TikTok — whose parent company ByteDance is based in China — has bipartisan support. After the recent unreassuring testimony from TikTok CEO Shou Zi Chew, multiple acts have been pushed forward in Congress.

The most popular one is the bipartisan act dubbed Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act. It was put forward by Senator Mark Warner (D-VA), who has partnered with Senate Minority Whip John Thune (R-SD). This bill is problematic because it grants powers to the Department of Commerce to ban the app (Secretary Gina Raimondo has already indicated she is loathe to do any such thing), as well as granting other powers to the federal government. Unsurprisingly, this particular legislation is also backed by the White House.

Senator Josh Hawley (R-MO) made moves to push forward his own legislation last week. This legislation is called No TikTok on United States Devices Act, and Senator Hawley was also responsible for the successful push to have the app banned on government devices. He began his opening arguments with: “We acted just a few months ago with a sense of urgency because we decided TikTok was a national security threat. And we were right to act just those few months ago. And now, we must take the next step — to ban TikTok nationwide, to protect the security of every single American whose personal lives, whose personal data, whose personal security is in danger from the Chinese Communist Party in Beijing.”

After Hawley’s passionate presentation, Senator Rand Paul (R-KY) was the first to object and, as the Washington Examiner put it, “spared Democrats from having to decide whom to put forward to object.”

Senator Paul argued that Hawley’s legislation presented an infringement on the First Amendment. Paul’s rebuttal began: “We should not let fear of communism cause us to ignore our First Amendment protections of free speech. This legislation would require our president to ban TikTok. I ask the American people, do you want Joe Biden to be your censor? Do you want a president of either party to decide what you are allowed to say and hear? Who will you entrust to save you from your own eyes and ears?”

Paul also warned that banning TikTok would lose Republicans elections for years to come. It’s important to also note that one of Paul’s biggest donors, Jeff Yass, is an investor in TikTok, though in a statement to the Washington Examiner, Hawley believes that Paul made his argument in good faith.

Hawley responded to Paul’s concerns with the valid point: “I have never before heard on this floor a defense of the right to spy. I didn’t realize that the First Amendment contained a right to espionage. The senator from Kentucky mentions the Bill of Rights. I must have missed the right of the Chinese government to spy on Americans in our Bill of Rights. Because that’s what we’re talking about here.”

Senator Marco Rubio (R-FL) also jumped in to defend Hawley’s legislation by quickly rebutting: “This is not a First Amendment issue because we’re not trying to ban ‘booty videos’ — I don’t know that there’s a better term for it. It’s not about the content of the videos that are online. It is about the dangers to our national security that are presented by the way this company functions.”

However, Paul in his objection made an interesting point and truly gets to the heart of the issue: The American people should have enough understanding of the dangers of the app, particularly if they are paying any sort of attention to the politics surrounding it. However, the 130 million+ users are choosing to continue to use the app despite warnings. Are we really at the point where the government has to step in and tell us what we can and cannot do on the Internet?

There is an argument to be made that of course there is. The Internet, specifically companies like Facebook, TikTok, Instagram, Twitter, and the many more that will come after them, is still relatively uncharted territory. The Democrats feel there is not enough government control. They would love to see more censorship as a general rule. Republicans tend to lean the opposite way, with good cause. See the Twitter Files.

Our Mark Alexander suggested a potential solution to the data harvesting problem many moons ago:

Congress has the authority to protect consumer privacy through legislation, and in the case of Facebook and other aggregators of private data (which should be classified as private property), that legislation should include explicit requirements regarding the dissemination of consumer data and profiles. When it comes to invasive privacy violations — the collecting and marketing of individual profiles — a ubiquitous blanket “user agreement” is completely insufficient.

Congress should enact legislation requiring that social media and other aggregators of individual data (Facebook, Google, et al.) be required to obtain specific and explicit user permissions for each and every transfer of such data, prior to the sale or transfer of any individually identifiable profiling data.

This is a good suggestion for American-based companies and keeps the government at arms length. On the other hand, TikTok and other companies that share data with the CCP should be treated differently than companies in the U.S. TikTok has been used to spy on journalists, monitor the movements of American citizens, collect all sorts of data including keystrokes from people who don’t even have the app active, and influence the minds of those who use the app. It is an espionage tool for the CCP. It should be banned along with any other foreign apps that are being used to collect data and spy on the American people.

There are other apps through which Americans can exercise their First Amendment rights without the significant threat that all their data, rights, and brain cells are going to be taken away by foreign adversaries.

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