Banning Tik Tok Would Violate America's Free Speech Tradition

A heavy-handed new law forced TikTok to announce that it would shut down operations "within days." Although the law left people without a popular forum to share and access information, a government official brushed off free speech concerns, saying that the ban did not mean "doom and gloom" for the general public. "Compared with the national security laws of other countries, it is a rather mild law," the official told the BBC.

But this was not an American official describing the shutdown of TikTok that could soon go into effect in the U.S., thanks to a law passed by Congress last April. It was Hong Kong chief executive and Communist Party loyalist Carrie Lam, in 2020, after China approved anti-dissent legislation that forced TikTok to shut down in Hong Kong.

Starting Jan. 10, the U.S. Supreme Court will hear oral arguments in TikTok v. Garland, the company's challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act, which requires TikTok to stop operations in the U.S. unless ByteDance, the Chinese company behind the video-sharing app, sells it to a new owner by Jan. 19. Last week, President-elect Donald Trump filed a brief in the case asking the Court to delay the law's effective date "to allow his incoming Administration to pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok." If the Court upholds the law, more than 170 million American TikTok users will lose access to it. But the effect could end up being much broader. Even Americans who don't use TikTok could soon find their favorite online platforms subject to the whims of regulators and lawmakers.

The U.S. isn't the first country to ban TikTok on the grounds that the app's Chinese ownership raises national security concerns. In 2020, escalating tensions between China and India caused the Indian government to prohibit the use of almost 60 Chinese apps, including TikTok, claiming that the apps violated user privacy and undermine the "national security and defense of India." Afghanistan and Kyrgyzstan have also banned TikTok. Even China has effectively banned the international version of the app for its own citizens. In Hong Kong, residents lost access to TikTok as part of China's systematic crackdown on Hong Kong's pro-democracy movement.

Other countries have banned the app because they worried about the content of the speech on the platform. In 2023, Senegal banned TikTok due to "hateful and subversive messages" that the government worried would cause political instability.

In May 2024, France's government banned TikTok for two weeks in its overseas territory of New Caledonia after violent riots following a local election. The French government accused TikTok of constituting a vehicle for disseminating "misinformation" fueled by "foreign countries and spread by rioters."

Senegal, India and even France have much less robust free speech protections than the U.S., which has long been the global gold standard for protecting free expression. Yet last month, the D.C. Circuit Court upheld the TikTok ban, accepting the federal government's contention that the app could endanger national security by collecting users' "precise locations, viewing habits, and private messages."

The majority opinion claimed that the government "acted solely to protect" First Amendment rights "from a foreign adversary nation." Such easy acceptance of the government's national security justifications, with so little skepticism, is contrary to the history of U.S. free speech law.

In 1971, in New York Times v. U.S., the Supreme Court forcefully rejected the federal government's request to block the New York Times and the Washington Post from publishing the Pentagon Papers, a classified report criticizing the U.S. government's conduct of the Vietnam War.

In his concurring opinion, Justice Hugo Black characterized the government's argument as stemming from the president's role as commander in chief and the head of U.S. foreign affairs. "We are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of 'national security," Black wrote.

To Black, such a request was laughable. "The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment," he wrote.

Justice William O. Douglas agreed, writing that "Open debate and discussion of public issues are vital to our national health." Black and Douglas weren't the first to voice such concerns.

In May 1798, shortly before the passage of the controversial Sedition Act, James Madison, the architect of the First Amendment, wrote in a letter to Thomas Jefferson that "perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions [against] danger real or pretended from abroad." Had the Supreme Court allowed the government to block the publication of the Pentagon Papers, "national security" would have become just such a blank check for censoring speech. It is easy to imagine the U.S. government using that precedent to block news stories and commentary criticizing the Iraq and Afghanistan wars, or reporting on Edward Snowden's leaks of classified information from the National Security Agency.

If today's Court allows the TikTok ban to stand, government officials in the future could use it as a legal basis for censoring all kinds of online speech, simply by manufacturing national security concerns. After the 2016 Presidential election, for instance, some critics claimed that Russia contributed to Donald Trump's victory by manipulating social-media platforms with state-sponsored propaganda. Subsequent research has discredited this alarmist narrative.

But without a robust First Amendment, Congress could have responded by censoring any online content it deemed to be "misinformation" in the name of protecting elections, as France has already done.

Just as the Pentagon Papers decision has been a bulwark for free expression, a decision upholding the TikTok ban could open the doors to decades of speech suppression. When the Supreme Court hears the challenge to the TikTok law, the nine Justices have an opportunity to insulate America from the very real censorship that has arisen around the world from similar bans.