The 118th Congress didn’t do much, but it did enact the Protecting Americans from Foreign Adversary Controlled Applications Act which, effectively, will ban TikTok. The rationale is that the owner of TikTok, ByteDance, is integrally related to or controlled by the Chinese communist party. As such, it can harvest the information available through the platform and use it to misinform and influence the American public.
The problem, of course, is that people love TikTok, where Trump claims to be “one of the most powerful, prolific, and influential users of social media in history,” shy and reticent fellow he is. If TikTok is bought from ByteDance by an entity that isn’t controlled by a foreign adversary, then the problem is fixed. If not, the law would ban TikTok, and by doing so, would cut off the platform from being employed by its many users to convey their speech.
With the law poised to take effect on January 19th, notable for it being the day before inauguration, the issue comes before the Supreme Court for oral argument this Friday.
The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and particularly younger ones, TikTok has become a leading source of information and entertainment.
Curiously, it’s the platform’s popularity that gives rise to the problem. After all, if nobody used TikTok, who cares whether it’s owned by a foreign adversary. But given its huge popularity, including a president here and there, harvesting its content is a windfall for China.
Senator Mitch McConnell, Republican of Kentucky, told the justices that he “is second to none in his appreciation and protection of the First Amendment’s right to free speech.” But he urged them to uphold the law.
“The right to free speech enshrined in the First Amendment does not apply to a corporate agent of the Chinese Communist Party,” Mr. McConnell wrote.
While the United States Constitution’s protection of free speech does not extend to the communist party that governs China, that’s not the free speech that concerns opponents of the law.
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said that stance reflected a fundamental misunderstanding.
“It is not the government’s role to tell us which ideas are worth listening to,” he said. “It’s not the government’s role to cleanse the marketplace of ideas or information that the government disagrees with.”
Not only would the Chinese communist party be denied its platform to influence Americans in the voting and beliefs, but so too would the 170 million Americans, ranging from dancing teeny-boppers to businesses to presidential teeny-boppers, be denied the mechanism with which to express their positions. Even if the Chinese communists have no First Amendment right to twist the mushy little minds of the youth, American presidents, businesses and mushy-little-minded youths do. What about their rights?
In its Supreme Court briefs defending the law banning TikTok, the Biden administration repeatedly cited the 2010 decision.
“Congress and the executive branch determined that ByteDance’s ownership and control of TikTok pose an unacceptable threat to national security because that relationship could permit a foreign adversary government to collect intelligence on and manipulate the content received by TikTok’s American users,” Elizabeth B. Prelogar, the U.S. solicitor general, wrote, “even if those harms had not yet materialized.”
It’s hardly novel for Congress to enact laws prohibiting foreign ownership or control over “sensitive” industries, like broadcasting or banking. After all, if a foreign nation decided it no longer liked us, and controlled our banking system, it could pull the plug on money and wreak havoc. For obvious reasons, that would be a disaster. Granted, banking involves no First Amendment issues, but the Supreme Court precedent, notably as argued by former Solicitor General, now Associate Justice, Elena Kagan, defers to the government to determine “assessments of national security threats.”
Notably, the law is content neutral as to Americans, banning ByteDance’s ownership without regard to the content of speech by its American users. Then again, it’s not content neutral with regard to the content of speech that might, or perhaps is, being used by the Chinese communist party, which is why the issue of whether China enjoys First Amendment rights in the United States via its control of the platform.
In a last minute filing, former and future President Trump seeks an opportunity to negotiate a resolution to this dilemma.
President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged. See, e.g., Executive Order No. 13942, Addressing the Threat Posed by TikTok, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020); Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297 (Aug. 14, 2020). Indeed, President Trump’s first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor.
Bold move, but does Trump’s dealmaking bravado supersede Congress’ determination that TikTok must be banned for national security? Of course, if Congress believes that Trump “alone” can fix this problem, it can always repeal the law or extend its effective date. Thus far, no effort toward giving Trump some time to work his magic has emerged.
Update: David French lays out the scenario should China decide to take Taiwan.
On TikTok, it’s as if a switch was flipped. All at once the feeds of almost 200 million Americans are full of urgent messages.
“Your government is lying to you.”
“China is peaceful.”
“America wants war.”
Given American’s adoration of anti-government conspiracies on both right and left, this is hardly far-fetched. While acknowledging the arguments made by Reason, FIRE and others that this is a restraint on free speech, David argues that the government isn’t prohibiting speech, but prohibiting a speech platform from being owned by China.