FIRE brief: TikTok law is unprecedented threat to Americans’ expressive rights

Never before has Congress taken the extraordinary step of effectively banning a communications platform, let alone one used by half the country. But this spring, Congress did exactly that when it passed the Protecting Americans from Foreign Adversary Controlled Applications Act. The law not only threatens TikTok’s U.S. operation but also exposes other online platforms to burdensome restrictions, including potential bans, if they have even tenuous connections to certain foreign countries. 

TikTok and its users quickly filed lawsuits in the U.S. Court of Appeals for the D.C. Circuit, which the act gives exclusive jurisdiction for challenges to the law. FIRE, joined by the Institute for Justice and the Reason Foundation, filed an amici curiae — “friend of the court” — brief supporting the plaintiffs. We argued the law violates the First Amendment in two ways. 

First, it explicitly targets a specific communications platform — and the users who speak and access content on it — for the purpose of silencing opinions and ideas that lawmakers oppose. Such attempts to suppress disfavored views strike at the heart of the First Amendment. 

Second, to the extent the law is motivated by national security concerns, Congress has failed to build a public record explaining why such a dramatic restriction of Americans’ right to speak and access information is necessary to address those concerns. (However, the court will not consider the brief for procedural reasons explained in the note following this article.)

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The law bans distributing or maintaining “foreign adversary controlled applications,” defined explicitly to include TikTok. That term’s broad and vague definition also includes apps and websites with even indirect connections to a country designated as a foreign adversary, if the president determines they threaten national security. If, for example, an entity based in a designated foreign adversary country has an indirect 20% stake in an app, it could face a ban. 

As FIRE explained previously, “The bill does not provide any standards for determining which national security threats are adequate to justify the use of this extraordinary authority, and it does not require any other approvals within the executive branch before the president may declare a company a national security threat.”

TikTok and other companies can avoid a ban only through a divestiture or similar transaction, within nine months, that the president determines would mitigate the threat.  But TikTok argues that divestiture from its Chinese parent company ByteDance is a legal and practical impossibility. So, if the D.C. Circuit does not block the law’s enforcement, the law will outright ban TikTok in the United States in a few months.

The government must meet a necessarily high constitutional bar for regulating speech platforms

More than 170 million Americans use TikTok to share and consume a wide range of content, from politics and news to how-to videos and makeup tutorials. FIRE itself uses the platform to advocate for free speech principles and reach new audiences. There is no question that TikTok, like other social media platforms, is an important and distinctive vehicle for expression in the United States. 

Like prosecutors required to prove charges beyond a reasonable doubt, the federal government must prove its case against TikTok. The government’s burden is very high for several reasons. One is that the law imposes a prior restraint on speech by denying Americans the ability to use a platform before they even speak. The Supreme Court has called prior restraints “the most serious and least tolerable infringement on First Amendment rights.” On top of that, the law regulates speech based on its content and the identity of the speaker. 

There is no question that TikTok, like other social media platforms, is an important and distinctive vehicle for expression in the United States. 

These significant encroachments on speech trigger strict scrutiny. That means the government must demonstrate the existence of a real and serious problem it has a compelling interest in solving and must prove that restricting speech is necessary to do so. And if less speech-restrictive alternatives are available, it must use those instead. 

Congress has failed this test on the public record. 

Tilting public debate in a preferred direction is not a legitimate government interest

Congress neglected to produce public explanations of the specific harms that justify banning or forcing changes to TikTok and potentially other platforms. That leaves the public to look at what lawmakers who supported the legislation have said about it. And those remarks reveal a disturbing motive: censorship of disfavored views and content. 

One of the law’s co-sponsors, for example, explicitly said that though he thinks TikTok presents a data security threat, the “propaganda threat” is the “greater concern.” Other members of Congress similarly claimed TikTok is “poisoning the minds” of young Americans. 

But the First Amendment protects both the right to speak and the right to receive information and ideas, including those some officials consider “propaganda.” As the Supreme Court has reaffirmed many times, it’s a “central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.” One man’s propaganda is another’s truth. The First Amendment leaves “such judgments to speakers and their audiences,” not government fiat.

Generalized privacy concerns don’t satisfy strict scrutiny

To be sure, members of Congress have also raised concerns that TikTok threatens national security by giving the Chinese government access to Americans’ personal data. The government certainly has a strong interest in protecting national security, but merely incanting the words “national security” doesn’t make the First Amendment disappear. 

Merely incanting the words “national security” doesn’t make the First Amendment disappear.

Rather, the government must provide evidence of a specific and serious national security threat and prove that regulating speech is necessary to address it. As we said in our brief: “The government must provide actual evidence of what TikTok does, with which personal data, and how that causes clear, specific harm the government has a compelling interest in preventing.” 

Congress simply hasn’t met these demanding requirements or shown that a wholesale ban of a communications channel is the least speech-restrictive means of pursuing any legitimate government interest.

The law’s content-based exemptions also undermine any argument that it is only designed to protect national security or data privacy. The law applies only to apps and websites that host user-generated content, and it exempts those dedicated to product, business, or travel reviews. But if its purpose is to prevent platforms from turning over user data to hostile foreign governments, why doesn’t it apply to any platform that collects user data and is “controlled by a foreign adversary”? 

The government rightly always faces a high burden when it seeks to limit our fundamental right to free speech. Anything less would make it too easy for authorities to silence dissenting and unpopular ideas. When it comes to the new law targeting TikTok and potentially other digital platforms, Congress simply has not met its burden. The D.C. Circuit should reaffirm Americans’ freedom to communicate online by ruling that the law violates the First Amendment.

Note: About a week after FIRE filed the brief, the D.C. Circuit struck it from the docket under a court rule requiring rejection of any amicus brief that would result in recusal of a judge assigned to the case. The three-judge panel for the TikTok case is not yet public, but the grounds on which judges may recuse themselves include a personal relationship or history of involvement with a case participant or their counsel, or avoidance of an actual or apparent conflict of interest. FIRE, the Institute for Justice, and the Reason Foundation are unaware of any basis for recusal that may have been perceived to be present, and the order did not provide any explanation.