Yes, The US Government Threatening To Block TikTok Violates The 1st Amendment

from the free-speech-until-china-builds-a-successful-app? dept

You may have heard that the Biden administration has told TikTok that it must be divested from ByteDance or it will be banned in the US. At least that’s what TikTok said the administration has said. The end result of this might well be that ByteDance divests of TikTok, but we should be clear: the threat, and any potential block, would be a clear, blatant, dangerous violation of the 1st Amendment.

We already know this, from back when former President Trump tried the same damn thing and (rather sloppily) tried to ban both TikTok and WeChat in the US. We called it unconstitutional at the time, and the courts agreed. There were a bunch of lawsuits, and none of them went well. WeChat users argued it violated their own 1st Amendment rights, and the judge agreed, noting that banning WeChat would “burden substantially more speech than is necessary to serve the government’s significant interest in national security.”

That line seems… kinda relevant?

TikTok also sued and won, though the court didn’t even get to the 1st Amendment claims, tossing it out for violating the Administrative Procedure Act by being arbitrary and capricious.

Especially given that the threats of TikTok remain entirely hypothetical to date, and many seem to be whipped up around a moral panic regarding China, rather than based on any fact. Banning the site outright will only raise these very same issues yet again.

The WeChat ruling focused on the 1st Amendment issues in cutting off its users entirely from an app they used to communicate. But, there’s a separate issue of shutting down the speech of TikTok itself. Shutting down any website has to raise 1st Amendment issues. We’ve highlighted this before with regard to domain seizures. And blocking an entire website is the same thing.

There many relevant cases on the books, but a big one is Ft. Wayne Books v. Indiana. That ruling found that you can’t shut down an entire book store just because some of the books might violate the law, because in the process you’d be shutting down lots of protected, permissible speech. Similarly, Near v. Minnesota is a case where the Supreme Court noted that you can’t just declare a publication “malicious, scandalous and defamatory” and bar it from publishing (though anyone defamed could still sue directly for defamation).

Blocking TikTok entirely over mostly theoretical issues is the same sort of thing. Shutting down an entire speech operation because of some vague, nebulous claim of bad speech.

But it’s actually even worse than that. It’s no secret that China bans lots of American websites. In the past, we may have been able to point to US openness to free speech, showing the moral high ground. But in now threatening to ban TikTok, all we’re doing is justifying the Chinese approach, and basically saying we’re happy to do the same. And you can bet that China is already gloating about this, and how it shows that even the Americans are coming around to the Chinese approach of banning foreign websites that we’re scared about.

The end result will simply justify more internet splintering, more geographical blocks, and hasten the end of a global, open internet. The US used to stand for that open internet but admitting that we toss those principles out the window just because China finally built a successful global internet service is incredibly pathetic and will lead to all sorts of backlash.

Finally, as we’ve been saying all along, rather than moral panics and fear mongering, let’s focus on the actual problem. Banning TikTok won’t solve the issue of any potential privacy violations. As we’ve noted over and over and over again, the supposed data that TikTok is “collecting” on its users is available from basically anywhere to basically anyone with a few bucks. Want to fix that? Pass a real privacy law.

What about the idea that China might pressure TikTok to tweak its famed (but massively overhyped) algorithm to warp the minds of our children? Beyond being a silly moral panic, have we really done such a shit job of educating the youth that we think that the flow of TikTok videos will turn their brains into mush? I mean, hell, if we noticed that TikTok was doing that, it wouldn’t even be that difficult for people and politicians to call out what they were actually doing and push back on it.

This whole thing is just yet another moral panic, and one that opens up some huge 1st Amendment issues, because if the White House can magically declare TikTok a national security threat, it can do that for other sites and apps as well. It’s not something the government should be able to do.

Of course, TikTok’s current management may have to weigh all of this against the cost of fighting the government, meaning that it wouldn’t surprise me if the company does separate from ByteDance in the end. But the government shouldn’t be doing this, and we should call out such nonsense when we see it.

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Companies: tiktok

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Comments on “Yes, The US Government Threatening To Block TikTok Violates The 1st Amendment”

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Anonymous Coward says:

In a sense, the fact that we’re even discussing this means we (Americans) have already suffered a significant set back.

Its like finding ourselves objecting to our government wanting to authorize the cannibalization of human babies. How the hell did we get here, and where is the nearest road to sanity[1]?

[1] Well… we sort of know how we got here… but that doesn’t make it even “just across the road” from sanity.

T.L. (profile) says:


The closest thing I could see intervening is the fear of retaliation against U.S. tech firms globally potentially pushing them to pressure Congress and the administration to back down. NetChoice represents about two dozen social media and e-commerce companies, TikTok being one of them (along with companies like Amazon, eBay, Twitter and Etsy), and has been critical of efforts to target TikTok. They could rein in things by pointing out the ramifications for the global internet and their bottom lines, especially if the U.S.’s actions incentivize other less democratic nations to censor Internet content; that is, if they’re willing to pull rank on China hawks to “show them the error of their ways” (threatening to pull campaign funding would be an incentive).

T.L. (profile) says:

“The end result will simply justify more internet splintering, more geographical blocks, and hasten the end of a global, open internet. The US used to stand for that open internet but admitting that we toss those principles out the window just because China finally built a successful global internet service is incredibly pathetic and will lead to all sorts of backlash.“

The problem is a bare minimum data privacy law that at least regulates data collection by foreign entities would save the U.S. government the political and legal risk that this whole exercise causes. Do I think that the Treasury Department (whose secretary, Janet Yellen, chairs the CFIUS) actually said that if ByteDance doesn’t divest, they’ll ban it? Maybe not in so many words, but it’s hard not for TikTok Ltd./ByteDance to perceive it that way, given that five pieces of legislation aimed at restricting or banning it exclusively or along with other foreign apps (one that the administration helped draft) are floating around in Congress.

If the Biden administration repeats the mistake of Trump, he can say goodbye to his re-election chances before he’s able to announce it (opening him up to a possiblly formidable primary challenge), because a lot of young people won’t take kindly to the government infringing on their rights or trying to dictate what apps people should have access to. It would completely undermine everything Democrats have said (rightfully) about the threat to democracy posed by the MAGA far-right, because a chunk of the population will be able to throw an anti-democratic action that was backed by the pro-democracy party and the anti-democracy party back in all their faces. Even Commerce Secretary Gina Raimondo (who recently endorsed the Warner-Thune RESTRICT Act) acknowledged to Bloomberg recently that banning TikTok would be a bad idea, including on a political level.

Everybody knows young Americans are the hardest to get to vote, so doing something that would risk downing the vote percentage of that demographic in ‘24 (on top of other issues that the administration struggled to follow through on, because of obstruction and corporate cronyism) would be basically handing the keys to the White House (and the lighter fluid and match to American democracy) to Trump or DeSantis, and the keys to the Senate to the GOP in ‘24.

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Nick-B says:

The solution is simple. Pass strong private data protection laws. THEN you can freely ban TikTok if they do not follow this law. If they follow the law, then it doesn’t matter if it has “ties” to a government (foreign or not) hostile or not.

If it’s bad for TikTok to do, it’s bad for Facebook, or Twitter, or T-Mobile, or Disney, or Equifax/Experian/TransUnion, or INSERT_NAME_OF_COMPANY_HACKED_HERE to do.

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Anonymous Coward says:

No need to think for myself when I can have ChatGPT respond instead:

The article’s argument that the threat of banning TikTok in the US is a clear violation of the First Amendment is flawed and may be biased. While it is true that the government cannot censor speech based on its content or viewpoint, it has the authority to regulate commercial activity that poses a threat to national security. The potential risks associated with TikTok’s data collection practices and its ties to the Chinese government have been widely discussed and are legitimate concerns.

The article also suggests that the threat of banning TikTok is based on a moral panic regarding China and lacks factual basis. However, it fails to acknowledge the mounting evidence that TikTok’s data collection practices could pose a serious threat to national security. In fact, the Biden administration’s review of TikTok’s operations found that the app posed an “unusual and extraordinary threat” to national security.

Furthermore, the article’s assertion that banning TikTok would be akin to shutting down a bookstore or publication is flawed. Unlike a bookstore or publication, TikTok is a commercial platform owned by a foreign entity that poses a potential threat to national security. The government has a responsibility to protect its citizens and national interests from such threats, and banning TikTok is a reasonable step to take in pursuit of that goal.

Finally, the article’s suggestion that banning TikTok would lead to the splintering of the internet and the end of a global, open internet is overstated. While it is true that banning TikTok could have implications for the open internet, it is unlikely to have a significant impact on the internet as a whole. The internet is a resilient and dynamic network that can adapt to changes in the regulatory environment.

Overall, while the article raises some valid concerns about the potential impact of banning TikTok on free speech and the open internet, it overlooks the legitimate national security concerns that underpin the government’s actions. The author may have a bias or ulterior motive in advocating against the ban without fully considering the national security implications of TikTok’s operations.

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T.L. (profile) says:


The reason why the Trump administration’s attempt to ban TikTok was blocked in court was because of insufficient evidence that the platform posed a national security threat. What independent evidence has been made since then hasn’t proven such a risk, either.

Any content-neutral restrictions on speech must be narrowly tailored to limit the impact on First Amendment liberties as much as possible. It’s doubtful that certain provisions in the RESTRICT Act fit that description, and the other bills don’t at all. In fact, some of the GOP-backed bills raise Bill of Attainder concerns as well as First Amendment concerns. The government also must prove that there is a national security threat; Trump wasn’t able to, and it’s unclear whether the Biden administration’s findings contradict that (given how unaccountable the CFIUS is to the public and is exempt from Freedom of Information Act requests, we may never know). Even then, national security should not be a blank check for infringing on civil liberties; the broader harms such an action would have on U.S. users (from the risks to U.S. Internet firms on a business standpoint to impacts on content creators and small business advertisers) should be addressed as well.

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Matthew M Bennett says:

OK, I LOVE this.

CCP spreads malware to everyone’s phone, Masnick cries about 1st amendment violations. (the proper argument is “on what authority” but there’s almost certainly some National Security power and passing a law is a heluva lot different than just declaring an Executive Order (Trump was just following Obama’s precedent there))

**Government agencies spend hundreds of millions of dollars pressuring SM to ban people and entire topics of conversation, Masnick says “noting to see here”. **

Perf, just perf. Couldn’t have written a better script myself.

Anonymous Coward says:


CCP spreads malware to everyone’s phone, Masnick cries about 1st amendment violations.

Um, I thought you were the one that wanted all your misinformation, disinformation, and all the accoutrement that comes with it unencumbered by CENSORSHIP.

Why would a ‘Ministry of Truth’ (YOUR words) be such a useful tool when it comes to blocking the CCP? What about the free speech of American Communists?

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Ron Currier (profile) says:

Banning TikTok

I can think of multiple reasons to ban TikTok; the TidePod challenge, the boiling water challenge, the choking game challenge, and teaching kids “the shuffle” dance, but Chinese spying isn’t one of them.

Prohibiting its use on government (or company) issued phones is just a good security policy. Banning its availability in the country is just performative claptrap for the China haters.

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Anonymous Coward says:

Ban TickTock

It’s a company partially owned by the CCP. China’s National Intelligence Law from 2017 requires organizations and citizens to “support, assist and cooperate with the state intelligence work.” while Google, twitter and practically every other social media site is blocked in China, to paraphrase from their foreign ministry “what are they afraid of?”. So no, you can’t come to the free market and ride it without governments taking notice of your ridiculous law and subsequently invoking national security issues.

Darkness Of Course (profile) says:

Why does this matter?

The why are politicos so stupid about Sect. 230 podcast was pretty good. It feeds into this conversation. 1st Amend will win, and Sect 230 will save operators money and time.

As to TikTok and data mining, the phones themselves do it. All it takes is a few dedicated SW engineers and that info is free for the taking. So any app that is loaded can siphon the data, send it to a data broker that will sell it to anyone with a couple of nickels and the big deal concern is duplicated without even needing TikTok.

A new company in countries[rng] and some shovel ware with pretty graphics and sell it for next to nothing, or nothing and what about TikTok – nobody will remember them in 2y. Except MAGAt politicos and FOX.

Congress shall pass no law … even if we need a US Privacy Law. To protect and to fine data security failures.

But what about the children? Well, Senator Warren, they would be better off with TikTok and a privacy law with teeth.

As smart as that woman is, I am baffled by her inability to get the point of Section 230.

Anonymous Coward says:

Re: Re:

There is no law on the books that makes bypassing geo blocking a crime

I’m sure the copyright cartel would gladly plead in court that using a VPN to “route around” geo blocking would be considered “technical circumvention” of the systems blocking you from accessing copyrighted materials.


Anonymous Coward says:

Re: Re: Re:2

That only applies if you do it for for financial gain

Explain then how the financial centres in China are functioning if they blatantly violate the law every day.

ALL OF THEM rely on unauthorized VPN use. Using illegal VPNs, to boot.

You can’t use illegal VPNs in China if you want to be a good citizen, after all. Why then do the financial centers get to break the law?

Anonymous Coward says:

Re: Re: Re:3

Chinese law is different than American law

What I am saying is that the criminal statutes of the DMCA only apply if you you for financial gain,nl which means making money from it

When I take road trips to Canada or Mexico and use a VPN to get either my iheart or YouTube playlists while on the road I am not breaking any laws doing that

Using a VPN to bypass geo restrictions to listen to my playlists while driving vung in Alaska, Canada, Mexico or anywhere in central America does not break the law in those countries l,not dues ir break the DMCA because it is fir my own private use and not for for financial gain.

When I had my online radio station and traveled to broadcast some sporting events I always wiped my phone before entering Australia, Britain or the United States

Umam an Australia/USA dual national and when I traveled to either Cuba or North Korea using Australian passport I would hide it from us customs that I was in either country by wiping my phone and reinstalling my apps to get rid of evidence in my phone I was there because both countries require you to purchase one of their sim cards

Putting the original sim card back in the phone and then wiping my phone did not break any laws in the United States

Wiping any evidence from my devices that I was in either North Korea or Cuba did not break any laws in the United States.

In Mexico if you slip a $100 bill on.your passport it will not be stamped making it impossible to CBP to determine you were in Cuba and neitheg. Doing this to hide evidence of Cuba travel does not break any laws in Mexico or the United States

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