At least two dozen states and a number of universities have banned TikTok, with more considering similar restrictions on the short-form social media app. A bipartisan coalition in Congress, meanwhile, is pushing for an outright ban on the app in the U.S. over concerns the Chinese government could force the app’s Beijing-based parent company ByteDance to surveil Americans.
But banning the app may be much harder than simply pulling the plug on its servers, according to legal scholars and experts on the topic.
"Congress can make a law on anything they want, and it could pass. But it also will be constitutionally challenged,” Ashley Nelson, senior professor of practice at Tulane University’s Freeman School of Business told Yahoo Finance.
“Whatever happens, I foresee a challenge probably going all the way up to the Supreme Court. The bottom line is, I don't see how the government can actually get away with banning all of TikTok from everyone.”
That’s because the Constitution protects Americans from government-imposed restrictions on speech wherever that speech might take place.
“It's going to be really difficult for the government to enact a total ban constitutionally,” David Greene, civil liberties director at the Electronic Frontier Foundation, told Yahoo Finance. “And that's even assuming that they can show that…there's some proof that the ban will actually help in some way.”
TikTok a target
TikTok has roughly 100 million U.S. users. The app is most popular among younger users, with 67% of teens saying they use the app, according to a Pew Research Center survey. That’s more than Meta's Facebook, 32%, and Instagram, 62%.
The app’s popularity and swift growth among teens has raised concerns in Washington and across the country that the app could be used as a means to track and gather information on users or spread Chinese Communist Party propaganda.
TikTok has denied allegations that it is a mouthpiece for China’s leadership and opened offices in the U.S. In June, the company announced that it finished moving Americans’ user data off of its own servers and onto Silicon Valley–based Oracle’s cloud platform.
Still, U.S. officials aren’t convinced. In December, Sen. Marco Rubio (R-FL) introduced legislation to ban TikTok in the U.S., which gained the support of Republicans and Democrats in the House.
Adding to the drama, in late December, The New York Times reported that ByteDance employees accessed the data of a handful of U.S. users and two journalists including location information. The employees, ByteDance said, inappropriately accessed the data during an internal investigation into leaks. ByteDance fired the workers involved in the matter.
Free speech laws could prevent a total ban
That’s pushed more states and even universities to ban TikTok. But those restrictions only apply to the use of the app on government and university devices and networks. In other words, there’s nothing stopping employees and students from checking out the latest TikTok trend on their personal phones and networks.
President Joe Biden has also come out against TikTok. And while the administration is negotiating with TikTok to quell any fears that China could abuse the app to gain information on Americans or spread disinformation, others are calling on Biden to take executive action. That, though, is unlikely to pass muster, either.
According to Greene, if Congress or Biden were to ban TikTok, it would be challenged in the courts as a violation of Americans’ First Amendment rights to free speech. And in cases of speech, he explained, the courts would attempt to determine if Biden or Congress could find a less restrictive way of addressing their concerns without enacting an outright ban for all Americans.
“It's going to be subject to First Amendment strict scrutiny. And that's going to require the government, whether it's the U.S. government or a state government, or local government or whatever, to show that this is the least restrictive means to advance a significant government interest,” Green said. “Total bans on things are almost never the least restrictive.”
The Supreme Court has pushed back against social media bans on First Amendment grounds before, Greene explained.
In Packingham v. North Carolina, a case that challenged a North Carolina law that outlawed convicted sex offenders from using social sites on which children appear, the court held that even a state’s interest in protecting minors from sex offenders was insufficient to withhold those offenders’ right to “speak” on those sites.
“Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.”
National security adds an extra problem
One solution to avoiding potential problems with the Supreme Court could be for legislators to introduce a ban on TikTok based on national security concerns about China’s ability to spy on Americans via the app, explained J.S. Nelson, a visiting researcher with the Program on Negotiation at Harvard Law School. But even that strategy is fraught with issues.
Namely, passing a law would force members of Congress to reveal exactly how the government knows China is using TikTok to gather information on Americans or otherwise influence its users.
“If you want to do it on some kind of a national security compelling threat issue, that's not something that Congress is likely to want to air and have all the hearings about. That gets into a lot of very specific national intelligence data,” she explained.
The reality is that banning TikTok in the U.S. is unlikely to happen anytime soon. So for now, at least, the trends, dances, and skits will keep coming without delay.
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