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tiktok ban
A Court Upheld the TikTok Ban, Proving Trump’s Not the Only Threat to Press Freedom
Trump’s aggressiveness against free speech isn’t an anomaly of his Make America Great Again movement, but a general feature of American state power.
Dec 11, 2024
U.S. President-elect Donald Trump is just weeks away from returning to the White House, and when he gets there, it is all but assured that he will attack press freedom (FAIR.org, 11/14/24; NBC, 12/4/24).
But the will and desire to clamp down on free speech and expression isn’t just a Trumpian phenomenon. A U.S. District Court of Appeals panel, with two Republican-appointed judges and one picked by a Democrat, has upheld a law forcing the sale of TikTok because of its alleged Chinese government control (AP, 12/6/24).
An act of Congress signed by the president—in this instance, outgoing Democratic President Joe Biden—that could ban a media product used by two-fifths of the nation seems inconceivable. And yet here we are.
All corners of government, joined by members of both major parties, concur that national security concerns should allow the government to scrap First Amendment principles. This means that Trump’s aggressiveness against free speech isn’t an anomaly of his Make America Great Again movement, but a general feature of American state power. The enormity of this decision, if upheld by the notoriously conservative Supreme Court, is a dire sign of what is to come.
Censorship for Freedom
Writing for the court, Ronald Reagan appointee Douglas Ginsburg said that despite the importance of the First Amendment, the government “acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States” (Reuters, 12/6/24).
In a concurring opinion, the court’s chief judge, Sri Srinivasan, who was appointed by President Barack Obama, said that “concerns about the prospect of foreign control over mass communications channels in the United States are of age-old vintage,” and thus the “decision to condition TikTok’s continued operation in the United States on severing Chinese control is not a historical outlier.”
Srinivasan cited the Communications Act of 1934 and other Federal Communications Commission regulations:
The FCC’s revocation of China Telecom’s authorization was “grounded [in] its conclusion that China Telecom poses an unacceptable security risk” because “the Chinese government is able to exert significant influence over [it].”… In rejecting China Telecom’s claim that the asserted national-security risk was unduly speculative, we noted that Chinese law obligates Chinese companies “to cooperate with state-directed cybersecurity supervision and inspection,” and we cited “compelling evidence that the Chinese government may use Chinese information technology firms as vectors of espionage and sabotage.”
He went on to say that “China Telecom is a present-day application of the kinds of restrictions on foreign control that have existed in the communications arena since the dawn of radio.”
Two-Fifths of the Nation
But there’s a key difference. For many reading this, this might be the first time you have ever heard of the FCC’s case against China Telecom (Reuters, 10/26/21). When I last wrote about the potential ban on TikTok (FAIR.org, 9/27/24), I debunked many of the national security concerns about data mining and espionage, and I also noted that the ban is incredibly unpopular, in part because “TikTok (3/21/23) claims 150 million users in the United States; its users are disproportionately young, female, Black, and Latine (Pew, 1/31/24).”
An act of Congress signed by the president—in this instance, outgoing Democratic President Joe Biden—that could ban a media product used by two-fifths of the nation seems inconceivable. And yet here we are.
This year, the House of Representatives “passed legislation that would allow the government to revoke the tax-exempt status of nonprofit groups it accuses of supporting terrorist entities” (New York Times, 11/21/24). While most Democrats voted against the bill in the end, it enjoyed the support of “blue dog” Democratic congressmembers like Henry Cuellar of Texas and Marie Gluesenkamp Perez of Washington State (Intercept, 11/21/24).
With Trump coming back into the presidency and the Senate falling into GOP control, that bill has a good chance of becoming law. Just think of what an unfettered Trump—who has vowed to make “the Fake News Media… pay a big price for what they have done to our once great Country” (AP, 12/5/23)—could do with a law giving virtually free rein to pull the plug on any nonprofit.
For example, The New York Times (8/5/23) last year raised alarms about a left-wing tech mogul named Neville Roy Singham, who the paper painted as a Chinese government puppeteer (FAIR.org, 8/17/23). “He and his allies are on the front line of what Communist Party officials call a ‘smokeless war,’” the Times wrote.
In order to advance Beijing’s “goal… to disguise propaganda as independent content,” the account continued, his groups “have produced YouTube videos that, together, racked up millions of views.” This depiction of journalistic advocacy as a kind of foreign invasion could be used to justify fodder to go after groups the government could connect to Singham, like the antiwar group Code Pink.
But any nonprofit would be under existential threat under the bill, if the Trump administration decides to label it a ““terrorist-supporting organization.” This includes major nongovernmental organizations like the ACLU and Amnesty International, as well as major news outlets organized as nonprofits, including NPR, ProPublica, and The Intercept.
Flimsy Security Concerns
Some see a ray of hope in Trump’s mercurial behavior, hoping he turns course on TikTok despite the fact that he started the whole campaign (NPR, 8/6/20; Vox, 12/6/24)—there’s some self-interest for the president-elect at play as “Trump joined TikTok during the 2024 election and used it to reach younger audiences” and he “boasts more than 14 million followers on the app” (Wall Street Journal, 12/6/24). But, given how far this case has gone, it would be a mistake to think Trump might simply give up the China-bashing as the core of his economic nationalism.
And Washington is already heading in a repressive direction. The Biden administration’s sanctions have forced Russian radio broadcaster Sputnik off U.S. airwaves (FAIR.org, 10/22/24), and privately owned Chinese newspapers like Sing Tao have had to register as foreign agents (South China Morning Post, 8/26/21); FAIR.org, 2/28/22).
It is also important to note how flimsy the “national security” concerns are in the TikTok case. As many journalists, including myself, have pointed out, the accusation that TikTok, a social media product, might engage in data collection is like saying water is wet—this is the nature of social media platforms.
The AP report (12/6/24) on the appeals court decision said that during the case, TikTok
accurately pointed out that the U.S. hasn’t provided evidence to show that the company handed over user data to the Chinese government, or manipulated content for Beijing’s benefit in the U.S.
To “assuage concerns about the company’s owners,” AP noted, “TikTok says it has invested more than $2 billion to bolster protections around U.S. user data.”
But the court ruling shows that the mere invocation of “national security” can pull government branches together to support measures that smother media freedom. A federal law eliminating a product enjoyed by nearly 150 million Americans might seem anathema to the free market rhetoric of the GOP, but this is completely in line with the authoritarian mindset that has been growing in the United States and many European countries for years.
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'Flawed and Dangerous': US Appeals Panel Upholds Potential TikTok Ban
"This is a deeply misguided ruling that reads important First Amendment precedents too narrowly and gives the government sweeping power to restrict Americans' access to information, ideas, and media from abroad."
Dec 06, 2024
First Amendment advocates on Friday criticized a U.S. appellate court for upholding a law that would ban TikTok in the United States if its Chinese parent company does not swiftly sell the social media platform used by an estimated 170 million Americans.
Signed by President Joe Biden in April, the law gives ByteDance until January 19 to divest from TikTok. Three judges from the U.S. Court of Appeals for the District of Columbia Circuit found that the parts of the law considered by the panel "do not contravene the First Amendment" nor other parts of the Constitution of the United States.
"The First Amendment exists to protect free speech in the United States. Here the government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States," Judge Douglas Ginsburg wrote in an opinion the company is expected to appeal to the U.S. Supreme Court.
Responding to the decision on social media Friday, Ashley Gorski, senior staff attorney with the ACLU's National Security Project, said that "the D.C. Circuit's decision today to uphold the TikTok ban is enormously disappointing. If allowed to stand, it would give the government far too much power to restrict Americans' speech online."
Jameel Jaffer, who was on a friend-of-the-court brief as director of the Knight First Amendment Institute at Columbia University, issued a similar warning after the ruling was released.
"This is a deeply misguided ruling that reads important First Amendment precedents too narrowly and gives the government sweeping power to restrict Americans' access to information, ideas, and media from abroad," he said. "I hope the D.C. Circuit's ruling won't be the last word—and I doubt it will be."
Kate Ruane, director of the Center for Democracy & Technology's Free Expression Project, also looked ahead to the next court fight.
"The D.C. Circuit decision upholding the TikTok ban will immeasurably harm the free expression of hundreds of millions of TikTok users in the U.S. and globally who use the app to create, to share information, to get their news, and promote their businesses," she said in a statement. "We hope the next phase of review of this misguided and overbroad law will be a chance to right this wrong and prevent it from going into effect."
In addition to arguing the law is unconstitutional, attorneys for TikTok and ByteDance "have claimed it's impossible to divest the platform commercially and technologically,"
The Associated Pressreported. "They also say any sale of TikTok without the coveted algorithm—the platform's secret sauce that Chinese authorities would likely block under any divesture plan—would turn the U.S. version of TikTok into an island disconnected from other global content."
U.S. President-elect Donald Trump, who is set to take office one day after the law's divestment deadline, previously supported banning the platform, but during the latest campaign, he pledged to try to "save TikTok." According toThe Washington Post:
Trump is expected to try to halt the TikTok ban, people familiar with his views on the matter told The Washington Post in early November, speaking on the condition of anonymity to discuss private conversations.
Alan Rozenshtein, a former national security adviser to the Justice Department, said Trump could take any of three actions to help TikTok fend off the ban: persuading Congress to repeal the law, directing his new attorney general not to enforce it, and declaring that ByteDance has satisfied the statute by performing a "qualified divestiture" of TikTok.
Although the president-elect hasn't yet weighed in on the new court decision, on Thursday he shared on his Truth Social platform a post-election overview of how his campaign performed on TikTok.
While Trump may move to preserve TikTok in the United States, civil rights attorney and Harvard Law School Cyberlaw Clinic instructor Alejandra Caraballo noted that the court decision's "terrible precedent" is also a concern as he returns to office.
"This will be a test of the U.S.'s ability to shut down access to websites they dislike," Caraballo stressed. "Really bad to do with Trump in office! We could enter a new era of government censorship."
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TikTok Sues US Government Over 'Unconstitutional' Potential Ban
One expert said legislators' admissions "that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend," said one First Amendment expert.
May 07, 2024
A top First Amendment expert on Tuesday said TikTok has a strong case against the U.S. government as the social media platform filed a federal lawsuit against a potential ban—particularly since proponents of the law have admitted it is aimed at blocking Americans' access to news out of Gaza.
The platform filed the lawsuit against U.S. Attorney General Merrick Garland in the U.S. Court of Appeals for the District of Columbia Circuit nearly two weeks after President Joe Biden signed the Protecting Americans From Foreign Adversaries Act into law as part of a larger foreign aid package.
Under the law, TikTok parent company ByteDance, a Chinese firm, has 270 days to sell the platform, allowing it to continue operating in the U.S. If it does not sell TikTok, the app will no longer be available on U.S. networks and app stores.
As Common Dreams reported Monday, Republican lawmakers including U.S. Rep. Mike Lawler (R-N.Y.) and Sen. Mitt Romney (R-Utah) have linked TikTok to the burgeoning anti-war protest movement spreading across the U.S., with the latter saying in an interview with Secretary of State Antony Blinken last Friday that "there was such overwhelming support" in Congress to shut down TikTok because of the frequent posting of Palestine-related content on the app.
"Restricting citizens' access to media from abroad is a practice that has long been associated with repressive regimes, so it's sad and alarming to see our own government going down this road," said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, on Tuesday. "TikTok's challenge to the ban is important, and we expect it to succeed. The First Amendment means 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."
"The fact that some legislators have acknowledged that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend," Jaffer added.
The law's sponsors claim it "is not a ban because it offers ByteDance a choice: divest TikTok's U.S. business or be shut down," reads the lawsuit. "But in reality, there is no choice. The 'qualified divestiture' demanded by the act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally."
Even if selling the app within the time frame was feasible, added TikTok and ByteDance, the law "would still be an extraordinary and unconstitutional assertion of power," ultimately allowing Congress to "circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down."
"And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content—an outcome fundamentally at odds with the Constitution's commitment to both free speech and individual liberty," the plaintiffs continued.
At The Philadelphia Inquirer on Tuesday, columnist Will Bunch noted that about a third of Americans between the ages of 18-29 get their news from TikTok, according to a recent Pew survey—as Romney openly stated he fears last week.
As Bunch wrote:
During the war in Gaza, most mainstream Western journalists have been blocked from entering the war zone. The best source of real-time information is often the phone video of airstrikes and their aftermath either shot by Palestinian journalists—more than 90 of whom have been killed—or civilian bystanders. Look, there's disinformation about every issue on social media—it's a serious problem. I'm a clueless boomer myself about TikTok, but I do spend way too much time on X/Twitter and I can tell you exactly what is radicalizing young people about Gaza.
The reason so many under-30 folks have adopted the Palestinian cause isn't disinformation, from Hamas or China or anyone else. They've been radicalized by the truth—daily videos of young children, some of them bloodied, some of them already dead, covered in dust and targeted by 2,000-pound dumb bombs made right here in America.
"If the real motivation for zapping TikTok from your phone is to silence legitimate political speech, just because a lot of members of Congress don't like it," wrote Bunch, "then this bill is the worst attack on the First Amendment since the government was sending World War I critics like Eugene V. Debs and Kate Richards O'Hare to prison, more than 100 years ago."
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