National Security and Freedom of Speech: The Case of TikTok
Trump’s election is the latest chapter in an ongoing saga between the federal government and TikTok—a legal tug-of-war that reflects deeper tensions between First Amendment rights and national security concerns. Despite the president-elect’s anticipated reversal of an outright TikTok ban, other considerations, such as Trump’s chosen appointment of new FCC chair pick Brendan Carr, a staunch critic of TikTok and ardent supporter of a total nationwide ban, show that the situation is far more complicated. [1] This administration’s attempt to ban TikTok, as well as any expected future actions on the social media site, mostly over concerns over its Chinese ownership and potential espionage risks, underscores an evolving legal landscape where traditional constitutional rights are at odds with modern geopolitical realities.
War and concerns over national security have often clashed with basic constitutional rights. Fearing Confederate insurgencies in Maryland, President Lincoln suspended the writ of habeas corpus during the Civil War, allowing the government to imprison any individual without judicial review. Though this proclamation was incredibly “breathtaking in scope”, it is not the subject of much criticism or even analysis by scholars, as the extreme situation President Lincoln was facing is usually seen as a justifiable reason for such measures. [2] Supreme Court Chief Justice Roger Taney attempted to upend the president’s suspension of habeas corpus in Ex parte Merryman, 17 U.S. (1 Curtis) 144 (1861), but the executive branch ignored this ruling due to the fact that it was technically not a ruling made by the Supreme Court. For that same reason, that case’s legal merits nowadays are heavily debated. [3] After Lincoln, there have been multiple cases about the justifications necessary for curtailing First Amendment rights. In Debs v. United States, 249 U.S. 211 (1919), the United States upheld the conviction of Eugene Debs for an antiwar speech he gave during World War I, justifying a restriction of the First Amendment during wartime. [4] Then decades later, in the case New York Times Co. v. United States, 403 U.S. 713 (1971), the Supreme Court ruled against the government's attempt to prevent the publication of the Pentagon Papers, emphasizing that prior restraint on speech carries a "heavy presumption against its constitutional validity." This landmark decision reaffirmed a principle that national security concerns must be balanced against the fundamental protections of the First Amendment, setting a high bar for justifying government interference in matters of free speech. [5] In general, the curtailing of a First Amendment right by the government is only valid so long as a “compelling governmental interest exists.” This means the most likely path to victory for the Federal government in the courts would mean proving a ban of TikTok does not violate the First Amendment.
The primary reason the federal government under President Biden wanted a TikTok ban is that its parent company ByteDance could be contractually obligated to pass along user data to the Chinese Communist Party (CCP). [6] The federal government argued that this creates a potential risk of espionage, as TikTok collects a vast array of user data that could be useful to China. Moreover, there is concern that the CCP could manipulate TikTok’s algorithm to cultivate China-friendly content or sow division among Americans, both of which would be in China’s geopolitical interest. These points have been the subject of national scrutiny for some time, and were in the national spotlight during the interrogation of TikTok’s CEO Shou Zi Chew in front of Congress. [7] Despite Chew’s assurances that TikTok operates independently of ByteDance and that U.S. user data is stored on American servers with plans for further isolation through "Project Texas," many lawmakers expressed skepticism about whether the app could truly operate without influence from its Chinese parent company.
However, after the election, it is likely that TikTok’s undeniable influence over American politics will be looked upon more favorably by the administration in power. After a push for more conservative content moderation, TikTok was a big part of a push on social media that helped put president-elect Donald Trump back in the White House, and many actors around the world are now expecting this favor to play out in TikTok’s favor, signaled by ByteDance’s valuation increasing to more than $300 billion USD. [8] Whether the new administration considers the potential national security threat TikTok poses to be a big enough reason to ignore the help TikTok was in helping Trump get elected will be an important question come January.
The incoming administration's approach to TikTok will significantly influence the balance between national security concerns and First Amendment protections. A decision to pursue a ban would likely require the administration to prove the ban does not violate the First Amendment. According to legal experts, a TikTok ban could amount to prior restraint, a form of censorship that carries a “heavy presumption” of unconstitutionality under the First Amendment. While the government has cited national security concerns, it would need to meet specific conditions that precedent dictates is necessary for a restriction of First Amendment rights. Specifically, that the restriction is content-neutral, that it’s narrowly tailored, and that it leaves open alternative channels of communication. [9] To meet those requirements, especially that a ban of a whole platform can be “narrowly tailored”, the federal government would need to provide concrete evidence of misuse of user data or direct involvement by ByteDance with the Chinese Communist Party (CCP)—evidence that has yet to be publicly substantiated. More likely, Trump’s administration could consider a lesser regulation on TikTok, one that is sure to upset foreign policy hawks and lawmakers who are growing more concerned over foreign influence on American politics. Given that large restrictions of First Amendment rights usually only happen during wartime, it seems unlikely that a total TikTok ban will or should survive the scrutiny of the Supreme Court.
As the digital world grows in importance, the implication of the TikTok ban debate has the potential to become foundational precedent. With a new president in power, the previous already contentious battle over TikTok will shift to a new battleground, where we will have to wait and see what happens. China is not an idle threat; the national security concern Bytedance presents is not negligible, nor is the digital nature of this problem easily understandable, something advisors in both Trump and Biden’s circles have recognized. Yet we are also still in peacetime, and rolling back fundamental rights in peacetime is never easily justifiable. Whether TikTok survives these challenges—or becomes a casualty of the shifting legal and political landscape—will likely influence how our government approaches similar issues in the future.
Edited by Sherman Criner
Endnotes
[1] “TikTok Ban, Net Neutrality Play: What to Expect from Brendan Carr as US FCC Chair?” 2024. The Indian Express (blog). November 18, 2024. https://indianexpress.com/article/technology/tech-news-technology/brendan-carr-us-fcc-chair-donald-trump-pick-9675842/.
[2] Dueholm, James A. 2008. “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis.” Journal of the Abraham Lincoln Association 29 (2). http://hdl.handle.net/2027/spo.2629860.0029.205.
[3] Bruce A. Ragsdale. 2007. “Ex Parte Merryman: Habeas Corpus During the Civil War | Federal Judicial Center.” Federal Judicial Center. 2007. https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-war.
[4] "Debs v. United States." Oyez. Accessed November 29, 2024. https://www.oyez.org/cases/1900-1940/249us211.
[5] “New York Times Company v. United States.” n.d. Oyez. Accessed November 20, 2024. https://www.oyez.org/cases/1970/1873.
[6] Liv McMahon. 2020. “US TikTok Ban: When and Why Could the App Be Outlawed?,” July 20, 2020. https://www.bbc.com/news/technology-53476117.
[7] “March 23, 2023 - TikTok CEO Shou Chew Testifies before Congress | CNN Business.” n.d. Accessed November 20, 2024. https://www.cnn.com/business/live-news/tiktok-ceo-congressional-hearing-shou-chew-03-23-23/index.html.
[8] Coco Feng. 2024. “Trump’s Win Boosts Hope That TikTok Will Be Saved from a US Ban.” South China Morning Post. November 18, 2024. https://www.scmp.com/tech/tech-war/article/3287083/trumps-win-boosts-hope-tiktok-will-be-saved-us-ban-bytedance-valuation-jumps.
[9] Paykin, Alexander. 2024. “A Tik-Tok Ban? The First Amendment Implications Should Not Be Underestimated.” New York State Bar Association. August 26, 2024. https://nysba.org/a-tik-tok-ban-the-first-amendment-implications-should-not-be-underestimated/.