President-elect Trump appears determined to make good on his promise to save TikTok, but he might not have to if the Constitution saves TikTok first. When examining the debate over TikTok and the push to ban that social media app from the U.S. public domain, it is important that the debate is put into the context of the Constitution and how such a ban would violate the free speech and other rights of Americans.
Congress passed and President Biden signed legislation earlier this year that would ban TikTok if the app is not sold to a non-Chinese owner. TikTok has understandably challenged the law in federal court, and the case is likely to be fast-tracked to the Supreme Court. The outcome is unclear, but if the courts adhere to the Constitution and its intent, TikTok should be here to stay.
While news reports of TikTok’s oral arguments in court in September noted that the app’s lawyers received a grilling from the panel of federal judges, TikTok’s constitutional arguments are strong and should easily overcome the unsupported and fanciful pretext that TikTok poses a national security concern.
The remedy to protect Americans from the potential of Chinese data gathering and influence is not to shut down the app but to come to agreement to protect against potential harm.
As CNN reported, “Court filings show that TikTok and U.S. national security officials had hammered out a draft proposal to address the security concerns. That agreement included the ability for the U.S. government to shut down TikTok if it violated the proposed deal.”
As part of TikTok’s “Project Texas,” the company has already moved all American user data to U.S.-based cloud servers run by Oracle. Yet, according to TikTok, the U.S. government walked away from the negotiating table, giving no explanation and instead embracing legislative efforts to ban the app if not sold.
The Supreme Court has consistently stood as the guardian of the Constitution and resisted governmental attempts like this to restrict speech and to take away personal sovereignty. That should hold again in this case, given that the ban legislation violates multiple constitutional protections.
First, banning the app would be a clear violation of the First Amendment. The American citizen users of the platform have rights recognized and protected by the First Amendment. If Congress and the president are allowed to ban the app, they will be inhibiting free speech activity that squarely falls in the realm of protected discourse and communication. Notably, the ban legislation would represent a prohibition on prior restraint of speech — banning U.S. citizen’s speech before it can be made on TikTok. Here, prior restraint is based solely on the geographic identity of the owner of the content provider. The Supreme Court decided long ago that the government can’t impose this type of prior restraint of speech.
The ban legislation also violates the Fifth Amendment’s Takings Clause. The Takings Clause guards private property against unlawful seizure by the government. The users of TikTok have property rights in their content on the platform that will be taken by the federal government without just compensation to those users.
The Fifth Amendment’s Equal Protection Clause would also be violated because the legislation singles TikTok and its users out for punishment without valid reasons.
The ban legislation also violates the Constitution’s Commerce Clause, because Congress would be using its commerce power to regulate noneconomic subject matter — in this case, speech and political expression.
If that weren’t enough, the ban legislation also represents an unconstitutional Bill of Attainder, because it imposes punishment on a specific person or group of people without a judicial trial.
In each of these scenarios, the government must show a compelling interest that is narrowly tailored for the TikTok ban to stand. None have been suggested or mentioned in the ban legislation and none have been offered by the legislation’s proponents.
It is obvious that alternatives are available to protect Americans from any hypothetical threat from TikTok. The government could begin by completing its negotiations with TikTok to ensure the security of American user data. Congress could pass a broader data privacy bill, such as the bipartisan American Privacy Rights Act, that would protect users of all social media apps, not just TikTok.
As Trump has noted, it is also clear that this ban legislation seems designed to benefit one person and company in particular, Meta’s Mark Zuckerberg. If TikTok is banned, many of its users would be expected to shift to Meta’s Reels product, which is widely regarded as an inferior copy of TikTok. Making Mark Zuckerberg wealthier is not a legitimate constitutional objective.
The Constitution exists for times such as these, protecting us against the erosion of our liberties.
