Nicholas Williams is a Junior at Georgetown University in the College of Arts and Sciences, majoring in English and Economics.
Since becoming a prominent fixture in American culture amidst the COVID-19 lockdowns of 2020, politicians have sought to restrict usage of TikTok in the United States. Former President Donald Trump floated the idea, more than once, to ban the application.[i] In December 2022, Congress passed the No TikTok on Government Devices Act, which required “TikTok to be removed from the information technology of federal agencies.”[ii] Nevertheless, national legislation regarding the platform never stuck: until three weeks ago. On March 5th, 2024, two Representatives introduced the Protecting Americans from Foreign Adversary Controlled Applications Act.[iii] On March 13th, the House passed the Act in a bipartisan vote of 352-65. The Act reasons that TikTok, a US company owned by the China-based parent company ByteDance, could pose a national security risk through their access to American data. Some Senators worry that TikTok could manipulate its algorithm to induce sympathy for the CCP among its users.[iv]
The Act requires that, for TikTok to continue operating in America, ByteDance must sell its shares to an American company. Regardless of whether the Senate passes this bill and if President Biden signs it into law (he has already indicated he would), the Supreme Court will likely have the final say on whether the ban goes into effect.[v] While there are valid national security concerns connected to TikTok, critics of the bill have questioned the constitutionality of this bill. As an immensely popular social media platform, boasting 170 million users in the United States alone, would banning the app impinge on the First Amendment?
Jurisprudence on the subject indicates that the Act may indeed pose a First Amendment violation. In November 2023, the Montana State Legislature passed a similar bill to outlaw the use of TikTok across the state.[vi] Justice Donald Molloy from the US District Court for the District of Montana issued an injunction against the bill after its passage. Justice Molloy and legal scholars echoed similar sentiments regarding the First Amendment claim; the Act would likely fail a strict scrutiny analysis.[vii] Before a strict scrutiny analysis can be applied to this law, however, the Court would need to decide whether First Amendment protections extend to the digital space; ie. if social media platforms are protected public forums. The recent SCOTUS cases Lindke v. Freed (2024)and O’Connor-Ratcliff v. Garnier (2024),which were decided together, have hinted that Freedom of Speech does extend to social media.[viii] Therefore, the government would need to present a compelling government interest, and the law would need to be narrowly tailored to fit that interest. But is the Act, as written now, strong enough to pass strict scrutiny? Proponents of the Act claim that TikTok poses a national security threat. Although ByteDance is not owned by the CCP, its data could be requested by Beijing under their National Intelligence Law. TikTok asserts that the CCP has never done this and that US data servers are housed by Oracle, a Texas-based company. Experts have also questioned the idea that the CCP could push propaganda via the TikTok algorithm.[ix]
If the Court accepts national security as a compelling interest, the government would then have to prove the Act is narrowly tailored to meet that goal: that it is the least restrictive means of executing their compelling interest. An all-out ban of TikTok seems like a drastic measure, as opposed to previous efforts to remove the application from government-owned devices. Critics of the Act have pointed out that the proposed sale of TikTok is wholly unrealistic. The window of time for the sale of TikTok is just six months,and the CCP can block the sale of TikTok to an American company under the National Intelligence Law (they have already indicated they would do so).[x] Can the Act be considered narrowly tailored if the sale of TikTok is designed to fail?
At this moment, it seems that the Protecting Americans from Foreign Adversary Controlled Applications Act would not pass a strict scrutiny analysis regarding its apparent First Amendment violation. However, the ultimate decision on the Act’s constitutionality will come down to SCOTUS’s interpretation of the text and whether the Senate passes the bill.
[i] Echo Wang and David Shepardson, TikTok to challenge U.S. order banning transactions with the video app, REUTERS (August 22, 2020), https://www.reuters.com/article/us-usa-tiktok-trump-exclusive-idUSKBN25H2QG/.
[ii] No TikTok on Government Devices Act, 40 U.S.C. 11101 (2022).
[iii] Scott Bomboy, A national TikTok ban and the First Amendment, NATIONAL CONSTITUTION CENTER (March 22, 2024),
https://constitutioncenter.org/blog/a-national-tiktok-ban-and-the-first-amendment#:~:text=In%20his%20opinion%2 C%20Judge%20Donald,Clause%20claims%20against%20the%20state.
[iv] Laura He, Wait, is TikTok really Chinese?, CNN (March 28, 2024),
https://www.cnn.com/2024/03/18/tech/tiktok-bytedance-china-ownership-intl-hnk/index.html.
[v] Drew Harwell and Eva Dou, If the House TikTok bill becomes law, the next stop is the courts, THE WASHINGTON POST (March 14, 2024),
https://www.washingtonpost.com/technology/2024/03/14/tik-tok-bill-constitutional-questions/.
[vi] Mansoor Iqbal, TikTok Revenue and Usage Statistics (2024), BUSINESS OF APPS (February 22, 2024), https://www.businessofapps.com/data/tik-tok-statistics/; An Act Banning TikTok In Montana, 30 Mont. Code 14 (2023).
[vii] Scott Bomboy, A national TikTok ban and the First Amendment, NATIONAL CONSTITUTION CENTER (March 22, 2024).
[viii] Lindke v. Freed, U.S. ___ 2024; O’Connor-Ratclif v. Garnier, 601 U.S. ___ 2024.
[ix] Taylor Lorenz, The TikTok debate featured many disputed claims. Here are 7 of them, THE WASHINGTON POST (March 16, 2024), https://www.washingtonpost.com/technology/2024/03/16/tik-tok-debate-claims/.
[x] Drew Harwell and Eva Dou, If the House TikTok bill becomes law, the next stop is the courts, THE WASHINGTON POST (March 14, 2024);3 Laura He, Wait, is TikTok really Chinese?, CNN (March 28, 2024)
