Is TikTok getting banned? This may jeopardize the right to freedom of expression

by James · March 13, 2023

The rapid rise in popularity of social media app TikTok has raised questions about the relationship of ByteDance, TikTok’s parent company, with the Chinese government.

Now, leaders on both sides of the aisle, including President Joe Biden, have called to ban or severely limit Americans’ access to the popular app.

But banning an app could raise significant questions about the First Amendment rights of TikTok’s US users, and affect much more than the ability to participate in the latest dance craze.

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TikTok is not the first company with ties to China to come under scrutiny. For example, the United States has banned Chinese companies such as Huawei due to national security concerns. Washington has denied some businesses approval for the necessary equipment and put them on a “blacklist” of companies that pose a threat to the security of America’s telecommunications infrastructure.

Trump tried to ban TikTok but failed

This is also not the first time that TikTok has threatened a nationwide ban, as the Trump administration has previously tried to do so through an executive order.

Banning TikTok raises a range of concerns that are different from those associated with banning certain equipment from the telecommunications infrastructure. Unlike device bans, app bans take away the ability to communicate and express opinions for millions of US users.

TikTok bans dramatically expand the government’s ability to control what apps and technologies Americans can use to communicate. In addition, bans have consequences not only for the companies themselves, but also for users who violate the bans.

The ACLU, for example, has expressed concern about the free speech and civil liberties implications of government bans, pointing out that it could set a dangerous precedent for the government to interfere with what apps Americans can use to express themselves and communicate with others.

Some argue that national security concerns outweigh the impact on speech, especially when users have a variety of other social media platforms to choose from. Still, policymakers have to walk a fine line, as banning TikTok could have further ramifications.

For example, it is unlikely that the ban will only affect TikTok. It can apply to any application or technology service, making it difficult for US platforms and foreign businesses.

The potential for increased scrutiny and bans could also loom large, leading other countries to ban US-based apps and businesses out of fear that the US government could access the data they collect. It can also deter foreign companies from expanding in the US if they do business in China, because of concerns that they could either face a tug-of-war or be banned.

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A review is underway to see if TikTok US, through the Texas Project, has put in place the necessary safeguards to allay concerns about the Chinese government’s ability to access the data of US users.

The Trump administration’s attempt to ban TikTok was rejected by the courts after a US district judge found insufficient evidence of national security risks, calling the ban “arbitrary and capricious”.

An academic study found that TikTok does not censor content in the United States and does not have data collection practices that pose a greater threat than other popular social media platforms. Before considering a radical step like a ban, policymakers need to make sure that claims of national security threats are backed up by solid evidence and not just sentiment.

Less stringent restrictions are worth considering

Given the serious consequences of a potential TikTok ban, and particularly the impact on users’ speech, policymakers should consider less restrictive options that could address potential national security concerns. Some of these steps have already been taken at the federal and state level, such as banning the app from government devices.

The ongoing review may also include additional recommendations that would reduce concerns about potential harm to users’ free speech, including a potential divestment from China-linked ByteDance.

Banning an app affects the ability of millions of citizens to communicate in the way they choose. With this in mind, the implications of the First Amendment ban on TikTok deserve at least as much consideration as the potential national security implications.

Jennifer Huddleston is a technology policy fellow at the Cato Institute and an assistant professor at George Mason University’s Antonin Scalia School of Law.