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'Completely Out of Touch... Both Parties': Supreme Court Looks Ready to OK TikTok Ban
"Banning TikTok in this way sets a dangerous precedent that could pave the way to future government interventions against online speech," said one advocate.
Jan 10, 2025
To the chagrin of First Amendment defenders and content creators, the Supreme Court on Friday appeared poised to uphold a law passed by Congress last year that would shut down the widely popular social media app TikTok in the U.S. unless its owner, the Chinese company ByteDance, sells it.
The de facto ban on TikTok was tucked into a $95 billion legislative package for aid to Ukraine and Israel that was passed by the Senate in April 2024. A standalone version of the legislation cleared the House with bipartisan support a month earlier. It is set to go into effect on January 19, barring a sale by ByteDance or intervention by the Supreme Court.
The law was justified on national security grounds, which were fueled by fears that national security laws in China could compel ByteDance to give the Chinese government access to data on TikTok users.
Nina Turner, a senior fellow at the Institute on Race, Power, and Political Economy, wrote Thursday: "The U.S. government stood up to TikTok before they stood up to[Israeli Prime Minister Benjamin] Netanyahu, or the health insurance lobby, or Big Pharma, or Big Oil—no. TikTok. Completely out of touch with the American people. Both parties."
During oral arguments, "justices across the ideological spectrum asked tough questions of both sides, [but] the overall tone and thrust appeared to suggest greater skepticism toward the arguments by lawyers for TikTok and its users that the First Amendment barred Congress from enacting the law," according to Friday reporting from The New York Times.
However, the Times also noted that "several justices were skeptical about a major part of the government's justification for the law: the risk that China might 'covertly' make TikTok manipulate the content shown to Americans or collect user data to achieve its geopolitical aims."
Ahead of the U.S. Supreme Court's hearing on TikTok's appeal of the ban, three bipartisan lawmakers were among the First Amendment advocates who filed amicus briefs in support of the app in late December. Rep. Ro Khanna (D-Calif.) and Sens. Ed Markey (D-Mass.) and Rand Paul (R-Ky.) asked the court to grant TikTok an emergency injunction to block the Protecting Americans from Foreign Adversary Controlled Applications Act.
The ACLU, the Center for Democracy & Technology (CDT), and the Freedom of the Press Foundation were among several civil liberties groups that also filed an amicus brief in late December, arguing that the government has not presented sufficient evidence that the app, which is used by 170 million Americans, causes "ongoing or imminent harm."
In a statement released Friday, the Free Press policy counsel Yanni Chen said that "as with repressive laws from oppressive regimes around the world, the real toll of the ban will be on everyday people... TikTok users, many of whom use the platform to organize communities and express views that legacy media often ignore."
"Banning TikTok in this way sets a dangerous precedent that could pave the way to future government interventions against online speech," she added.
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Biden Signs TikTok Ban—Among the 'Stupidest and Most Authoritarian' Tech Bills
One critic said that "the bill doesn't touch the homegrown spyware U.S. companies churn out" and "also strikes at the First Amendment right to receive information."
Apr 24, 2024
Digital rights defenders on Wednesday slammed the passage of a U.S. foreign aid package containing a possible nationwide TikTok ban as unconstitutional, xenophobic, and ill-advised during an election year in which President Joe Biden desperately needs as many young votes as possible.
Biden signed the $95 billion bill late Wednesday morning after senators voted 79-18 the previous evening to approve the package, which includes tens of billions of dollars in U.S. military assistance for Ukraine, Taiwan, and Israel—which is waging a genocidal war against Palestinians in Gaza.
One of the bill's provisions would force ByteDance, TikTok's Chinese parent company, to sell the app to a non-Chinese company within a year or face a federal ban. Approximately 170 million Americans use TikTok, which is especially popular among members of Gen-Z and small-to-medium-sized businesses, and
contributes tens of billions of dollars to the U.S. economy annually.
"Whether it's dressed up as a ban or a forced sale, the bill targeting TikTok is one of the stupidest and most authoritarian pieces of tech legislation we've seen in years," Fight for the Future director Evan Greer said in a statement.
Jenna Leventoff, senior policy counsel at the ACLU, called the provision "nothing more than an unconstitutional ban in disguise."
"Banning a social media platform that hundreds of millions of Americans use to express themselves would have devastating consequences for all of our First Amendment rights, and will almost certainly be struck down in court," she added.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University,
said:
The First Amendment means that the government can't restrict Americans' access to ideas, information, or media from abroad without a very good reason for it—and no such reason exists here. Repackaging the government's reasons for the ban in the language of "national security" does not change the analysis. There's no national security exception to the First Amendment, and creating such an exception would make the First Amendment a dead letter.
Proponents of the possible ban attempted to spin it as something else and pointed to precedents including the 2020 forced sale of the popular LGBTQ+ dating app Grindr, formerly owned by a Chinese company.
"I want to be very clear: This is not a 'TikTok ban,'" Sen. John Fetterman (D-Pa.), who voted to approve the bill, said in a statement. "I have no interest in banning TikTok. This bill will simply make TikTok safer by separating it from the Chinese Communist Party so that the data of 170 million Americans—many of whom are children—is protected."
Senate Commerce Committee Chair Maria Cantwell (D-Wash.) said before Tuesday's vote that "Congress is acting to prevent foreign adversaries from conducting espionage, surveillance, maligned operations, harming vulnerable Americans, our servicemen and women, and our U.S. government personnel."
"Banning TikTok without passing real tech regulation will just further entrench monopolies like Meta and Google, without doing anything to protect Americans from data harvesting or government propaganda."
However, Kate Ruane, who directs the Center for Democracy & Technology's Free Expression Project, asserted that "Congress shouldn't be in the business of banning platforms. They should be working to enact comprehensive privacy legislation that protects our private data no matter where we choose to engage online."
Greer said that "not only is this bill laughably unconstitutional and a blatant assault on free expression and human rights, it's also a perfect way to derail momentum toward more meaningful policies like privacy and antitrust legislation that would actually address the harms of Big Tech and surveillance capitalism."
Greer continued:
Banning TikTok without passing real tech regulation will just further entrench monopolies like Meta and Google, without doing anything to protect Americans from data harvesting or government propaganda.
We could be months away from another Trump administration, and top Democrats are busy expanding mass surveillance authority and setting the precedent that the government can ban an entire social media app based on vague 'national security' concerns that haven't been explained to the public.
Some critics questioned the wisdom of Biden signing off on a potential ban of the most popular social media app among many young users during an election year in which many younger voters are disappointed in the president's record on climate, student debt relief, the Gaza genocide, and more.
One user of X, the social platform formerly known as Twitter, said earlier this year that signing the bill would demonstrate a "comical level of political malpractice, the equivalent of seeing the rake on the ground and purposefully stepping on it."
Moments after Biden signed the bill, TikTok CEO Shou Zi Chew
vowed, "We aren't going anywhere."
"The facts and the Constitution are on our side and we expect to prevail again," he said, referring to the three times when federal judges blocked efforts to ban TikTok.
TikTok CEO Shou Chew responds to the bill that could ban the app: “Make no mistake, this is a ban, a ban of TikTok and a ban on you and your voice.”
“Rest assured, we aren’t going anywhere.”
pic.twitter.com/qElI8JvY0D
— philip lewis (@Phil_Lewis_) April 24, 2024
In the most recent case, U.S. District Court Judge Donald Molloy ruled last December that a Montana law that would have banned the app "violates the Constitution in more ways than one" and had a "pervasive undertone of anti-Chinese sentiment."
It is unclear who would buy TikTok. Analysts estimate the platform is worth upward of $100 billion, placing it out of reach for all but the biggest U.S. tech titans and, ironically, setting up possible antitrust challenges from the very administration that ultimately forced the sale.
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'Blatant Censorship': Critics Blast US House Vote for TikTok Ban
"Don't ban TikTok," said Fight for the Future. "Pass a goddamn privacy law."
Mar 13, 2024
U.S. progressives on Wednesday decried what they called a xenophobic censorship bill passed by House lawmakers that would ban TikTok if its Chinese parent company doesn't sell its stake in the popular social media app, with critics arguing that Congress should instead pass a comprehensive digital privacy law.
Lawmakers passed the Protecting Americans From Foreign Adversary Controlled Applications Act in an overwhelmingly bipartisan 352-65 vote. The legislation "prohibits distributing, maintaining, or providing internet hosting services for a foreign adversary-controlled application" like TikTok, a wholly owned subsidiary of the Chinese tech company ByteDance.
Fifty House Democrats and 15 Republicans voted against the bill.
"I voted no on the TikTok forced sale bill," Rep. Greg Casar (D-Texas) said in a statement. "While I have serious data privacy concerns with TikTok, this bill was rapidly rushed to a vote by the Republicans with almost no public scrutiny—and that's a recipe for unintended consequences."
"We need well-vetted, robust protections for TikTok users," Casar added. "Today's bill simply may not work."
Congresswoman Ilhan Omar (D-Minn.), who also voted no, said on social media that "not only are there First Amendment concerns, this is bad policy."
"We should create actual standards and regulations around privacy violations across social media companies—not target platforms we don't like," she added.
Rep. Barbara Lee (D-Calif.), another no vote, said that "rather than target one company in a rushed and secretive process, Congress should pass comprehensive data privacy protections and do a better job of informing the public of the threats these companies may pose to national security."
Proponents of the bill, which was rushed to a vote after a closed-door hearing, argue that because ByteDance is beholden to the Chinese government, TikTok could be compelled to disclose data on the approximately 170 million Americans who use the app.
If passed by the Senate and signed into law by President Joe Biden—who has vowed to approve the legislation—ByteDance will have six months to divest from TikTok or it will be banned from U.S. app stores and web hosts.
Responding to the vote, Chinese Foreign Ministry spokesperson Wang Wenbin accused the U.S. government of "resorting to hegemonic moves when one could not succeed in fair competition."
Wang added that the move "disrupts the normal operation of businesses, undermines the confidence of international investors in the investment environment, sabotages the normal economic and trade order in the world, and will eventually backfire on the U.S. itself."
"The rhetoric fueling a TikTok ban is a xenophobic, moral panic about the content on TikTok."
Civil liberties and digital rights groups blasted the House vote, with the ACLU accusing lawmakers of "violating the free speech rights of millions of Americans who use the platform daily to communicate and stay informed."
Fight for the Future said that "the rhetoric fueling a TikTok ban is a xenophobic, moral panic about the content on TikTok, disregarding... users in the U.S. that use the app for news, small business, community organizing, and free expression."
"Don't ban TikTok," the group asserted on social media. "Pass a goddamn privacy law."
Other critics highlighted U.S. tech giants' rampant abuse of user privacy. RootsAction called the bill a "serious First Amendment violation and an infringement upon free speech" that "does very little to address broader concerns about privacy rights, as U.S. based social media companies extensively violate those rights."
Jenna Ruddock, an attorney at Free Press Action, said in a
statement:
TikTok isn't perfect, but banning it is the wrong solution. Like all popular platforms, including those that Meta and Google own, TikTok collects too much data on its users. But unilaterally dismantling spaces for free expression limits people's access to information and cuts off avenues for creators to build community. The legislation also fails to meaningfully protect our privacy or address the national security concerns the bill's sponsors have raised.
"Banning a single platform will not address the problem at the root of the entire tech landscape," Ruddock contended, for "at any given time, dozens of corporations are tracking us, analyzing our behavior, and profiting off of our private information."
"It's ridiculous for Congress to single out one app while failing to act on this huge problem that's prevalent across all social media," she added. "Lawmakers should instead pass a federal privacy law that would limit how all companies collect, store, analyze, and sell our personal data."
Some critics linked the legislation to U.S. support for Israel's genocide in Gaza and TikTok users' prolific advocacy for Palestine, with RootsAction noting that the American Israel Public Affairs Committee was the leading campaign contributor to bill author Rep. Mike Gallagher (R-Wis.) during the 2021-22 election cycle.
The peace group CodePink quipped, "As Israel drops U.S. bombs on civilians daily, they'd rather ban an app than a genocide."
The legislation now heads to the Senate, where Majority Leader Chuck Schumer (D-N.Y.) only said that the chamber "will review" the bill.
"Make no mistake: The House's TikTok bill is a ban, and it's blatant censorship," ACLU senior policy counsel Jenna Leventoff argued. "Today, the House of Representatives voted to violate the First Amendment rights of more than half of the country. The Senate must reject this unconstitutional and reckless bill."
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