Lawfare Archive: A TikTok Ban and the First Amendment
Dec 22, 2024
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Ramya Krishnan is a staff attorney at the Knight First Amendment Institute, while Mary-Rose Papendrea is a constitutional law professor at UNC. They debate the legality of banning TikTok, emphasizing First Amendment rights versus national security concerns. The discussion highlights how TikTok's popularity among youth clashes with the government's fears about data security. They explore legal precedents and suggest that a blanket ban may not be the best solution, advocating for alternative risk management strategies instead.
The legal debate over a TikTok ban centers on First Amendment rights, raising concerns about prior restraint on speech and judicial scrutiny.
National security arguments for banning TikTok face challenges in court, as they must be backed by substantial and specific evidence to be credible.
The proposed Restrict Act might bypass existing legislative limitations on addressing TikTok but remains subject to scrutiny under First Amendment protections.
Deep dives
Constitutional Framework for a TikTok Ban
The discussion explores the legal framework surrounding a potential ban on TikTok, emphasizing the First Amendment implications. Challengers of the ban may argue that it acts as a prior restraint on speech, which demands the highest level of scrutiny from the courts. The government could contend that the ban is content-neutral and less stringent, but it must still demonstrate that it serves a compelling interest and is narrowly tailored. The complexity of these frameworks illustrates that the outcome in court is uncertain and contingent on how the government articulates its reasons for the ban.
National Security Concerns and Judicial Scrutiny
National security is a critical element in the debate over a TikTok ban, with courts traditionally granting the government some deference in these matters. However, such deference does not exempt the government from providing substantial evidence to justify the ban. Courts have previously rejected claims of national security interests when the justification lacked specificity and evidence. The discussion raises essential questions about whether courts will accept hypothetical risks or demand concrete evidence of a national security threat associated with the platform.
Challenges of Proving Disinformation Risks
The narrative around disinformation presents significant challenges for the government in justifying a TikTok ban. It is argued that general concerns over foreign manipulation of information may not suffice to warrant outright censorship of a communication platform extensively used by Americans. Historical precedents suggest courts are skeptical of bans justified by speculative fears without substantive proof. Therefore, constructing a credible argument based on disinformation risks remains complex and potentially weak compared to more direct national security threats.
Divestment as an Alternative to a Ban
The idea of compelling TikTok’s parent company to divest could serve as an alternative to an outright ban, posing its own set of First Amendment questions. If the motivation for divestment stems from the desire to prevent foreign influence over U.S. communications and information, this could be seen as an infringement on editorial discretion. Yet, the legality of such an action would largely depend on the underlying reasons for the divestment order. This raises additional questions about the balance between national security and First Amendment rights in the context of foreign ownership of technology platforms.
Legislative Measures and Their Implications
The proposed Restrict Act aims to address concerns around platforms like TikTok by circumventing limitations under existing legislation, which could potentially simplify government actions. However, even with new legislation, First Amendment protections may still apply, making it essential for any actions taken to align with constitutional scrutiny. The act's ability to authorize coercive measures does not inherently eliminate the right to free speech considerations. Discussions surrounding the act highlight the evolving landscape of digital communication regulation, particularly concerning foreign ownership and national security.
From April 14, 2023: Over the past few years, TikTok has become a uniquely polarizing social media platform. On the one hand, millions of users, especially those in their teens and twenties, love the app. On the other hand, the government is concerned that TikTok's vulnerability to pressure from the Chinese Communist Party makes it a serious national security threat. There's even talk of banning the app altogether. But would that be legal? In particular, does the First Amendment allow the government to ban an application that’s used by millions to communicate every day?
On this episode of Arbiters of Truth, our series on the information ecosystem, Matt Perault, director of the Center on Technology Policy at the University of North Carolina at Chapel Hill, and Alan Z. Rozenshtein, Lawfare Senior Editor and Associate Professor of Law at the University of Minnesota, spoke with Ramya Krishnan, a staff attorney at the Knight First Amendment Institute at Columbia University, and Mary-Rose Papendrea, the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law, to think through the legal and policy implications of a TikTok ban.