First Amendment Implications of the TikTok Ban

In recent years, TikTok, a social media platform with a massive global user base, has come under intense scrutiny from U.S. lawmakers. Concerns about privacy, national security, and the platform’s ties to the Chinese government have led to bipartisan legislation calling for either banning the app or forcing its sale to a U.S.-based company. Amidst the national debate, the U.S. Supreme Court was tasked with determining the constitutionality of the proposed TikTok legislation. Central to this inquiry for the 170 million users and small business owners on TikTok is the First Amendment, which guarantees the right to freedom of speech. The question for the Supreme Court in the eyes of the average American is: does the U.S. government’s prerogative to regulate national security issues and privacy concerns supersede the First Amendment rights of its users?

TikTok and the National Security Concerns

The controversy surrounding TikTok largely stems from its ownership by ByteDance, a Chinese technology company. Lawmakers and government officials, during both the Trump and Biden administrations, raised concerns about the potential for the Chinese government to access user data through the app, citing the country’s surveillance practices and data control laws. Representatives of both parties in Congress have argued that this level of access to U.S. citizens’ data by a foreign adversary constitutes a threat to the country’s national security. There are additional fears that TikTok could be used as a tool for propaganda or influence campaigns contrary to U.S. interests, which have been promulgated by various Congressional representatives.

In response to these concerns, Congress passed the “Protecting Americans from Foreign Adversary Controlled Applications (PAFACA) Act,” which gives the U.S. government broad authority to ban apps or platforms that could pose national security risks. The legislation was challenged by TikTok but was ultimately upheld by the Supreme Court.

The First Amendment and the TikTok Ban

At the heart of TikTok’s injunction against the TikTok ban is the First Amendment protections enshrined in the Constitution, which ensures that “Congress shall make no law… abridging the freedom of speech, or of the press.” This protection covers not just traditional forms of speech, such as spoken or written words, but also extends to the digital space. TikTok has become a primary venue for 170 million U.S. users to express themselves, share ideas, participate in public discourse, and operate small businesses. TikTok’s argument to the Supreme Court was that a ban or severe regulation of the app could effectively silence a significant portion of public expression, violating the First Amendment rights of their immense American user base.

The U.S. courts have long recognized that restrictions on speech are subject to strict scrutiny, however, in the Supreme Court’s unanimous per curiam decision, they ruled that First Amendment protections are not adjudicated in this matter because the legislation deals with national security and privacy primarily, and is directed at ByteDance and not U.S. citizens using the app. This means that the Supreme Court did not analyze the legislation under the strict scrutiny standard and has effectively decided not to settle the legal question of whether or not social media bans infringe on the free speech of the app’s users. This is potentially one of the most significant precedential decisions in the digital era. This Supreme Court decision is especially consequential because the PAFACA Act applies to all applications operated by foreign entities the U.S. deems adversarial, not solely TikTok.

Standards and Precedent

Notably, in Reno v. ACLU (1997), the Court ruled that the government’s attempts to regulate speech on the internet must meet the high bar of strict scrutiny, which demands that any restriction on speech be both narrowly tailored and justified by a compelling governmental interest. Moreover, the Court's decision in Packingham v. North Carolina (2017) emphasized that access to digital platforms is essential for meaningful participation in the modern democratic process. The Court ruled that laws restricting access to social media platforms must be carefully crafted so as not to infringe on First Amendment rights. The logic of Packingham could have been extended to TikTok, where the ban is seen by users and TikTok itself as disproportionately stifling a form of speech that is vital for many people’s ability to communicate and organize. Yet, the Court forewent this form of analysis in this case, instead preempting these issues with a framing solely on national security.

In evaluating the PAFACA Act, the Supreme Court additionally considered whether the TikTok ban constituted content-based or content-neutral speech restriction. This is an important distinction because content-based restrictions are met with a high standard of scrutiny and are, essentially, presumptively unconstitutional. Content-neutral restrictions, however, are subject to a lower level of scrutiny; for example, a law requiring permits for organized protests. In Reed v. Town of Gilbert (2015), the Court ruled that content-based restrictions on the face of a legislative act demands elevated scrutiny, even in cases where the government puts forward content-neutral justifications for the law. As the government put forward both a content-neutral (i.e. national security interests) and content-based (i.e. Chinese propaganda promulgated by the TikTok algorithm) justifications for the TikTok ban, based on the above-referenced precedent, the Court would have been well-situated in the precedent to assess this law by the content-based restriction standard. However, the Court decided that the law should be assessed as content-neutral due to the main justification being related to data and national security.

Conclusion

The First Amendment implications of the Court’s ruling on the TikTok ban are profound and complex. The decision to override the traditional free speech strict scrutiny standard in this instance and simultaneously evaluate the law under a content-neutral rather than content-based speech restriction standard sets a strong precedent in the issue of the balance between security and speech. In a similar manner to Nieves v. Bartlett (2019), this ruling provides a framework for the government to legislate widespread speech restrictions as long as Congress provides the Supreme Court with a parallel discrete content-neutral justification.