Does the bill targeting TikTok violate the First Amendment?
The House may vote soon on a bill that could ban TikTok. However, previous attempts to do so have struggled in the courts. Will this time be different?
There have been a series of efforts to ban TikTok in the United States going back to 2020. Then-President Donald Trump issued executive orders that gave ByteDance, the app’s Chinese parent company, a limited amount of time to sell the platform or it would be banned. That action, however, failed after running into legal challenges which led multiple federal judges to block the order.
The issue of whether either violated the First Amendment was not discussed but rather the judges said that they ran afoul of a statute that restricts the president’s authority to use emergency powers to ban the importation of information from foreign countries. Congress is trying to remove this impediment with new proposed legislation that could be voted on in the House as soon as next week.
Congress plan to ban TikTok
The Protecting Americans from Foreign Adversary Controlled Applications Act, was approved unanimously by the Energy and Commerce Committee on Thursday. It would make it illegal to distribute apps developed by ByteDance, and effectively ban TikTok, unless the platform is sold within 180 days from the bill becoming law.
If the ByteDance decides not to sell TikTok, the app would be banned from US app stores like Apple and Google as well as web-hosting services. If an app store violates the ban, it could be fined up to $5,000 per user.
The legislation would give discretion to Biden, and future presidents, to ban other apps owned by firms “controlled by a foreign adversary,” such as China, Iran, North Korea or Russia. The committee chair, Rep. Cathy McMorris Rodgers, says that the legislation is not “a blank check” for a president to “ban whatever apps they want.”
Does the bill targeting TikTok violate the First Amendment?
Free speech advocates have warned lawmakers that such legislation is unconstitutional and would violate the First Amendment. According to Knight First Amendment executive director Jameel Jaffer, users of the app who only watch TikTok videos without actually posting their own content have the right under the First Amendment to receive information. Even if it comes from an adversarial foreign government in the form of propaganda the Supreme Court has ruled.
Rep. Mike Gallagher, one of the bill’s lead cosponsors, told CNN that he and his colleagues have been consulting with the White House and other officials to make sure the legislation can withstand a legal challenge. By giving ByteDance the opportunity to divest from TikTok, its not an outright ban he argues and thus provides a path for “the app to continue its operations in the United States without threatening Americans’ online freedom, privacy and security.”
First Amendment experts say that even though the bill doesn’t directly censor TikTok or its users, “there’s no denying that it would do just that,” said senior policy counsel at the American Civil Liberties Union Jenna Leventoff. They say that the courts would see right through the legal chicanery and that the law would effectively stifle speech.