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The Dangerous Language and First Amendment Challenges of the Rushed Anti-TikTok Bill

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The question of the TikTok “ban” in the US has jumbled the political landscape, creating unusual alliances and stirring passionate debates across the nation. Although there is a striking unity in Congress supporting a TikTok ban, differing perspectives persist among the American populace.

If the legislation passes in its current form, Bytedance will have a 180-day window to divest TikTok or else it will face prohibition.

While supporters of the ban highlight TikTok as a national security threat, opponents argue that the proposed ban is a covert means of controlling other social media platforms. This is mostly due to some of the wording of the rushed bill.

We obtained a copy of the bill for you here.

The most contentious part of the bill is likely the section that uses the phrase “foreign adversary controlled applications,” a term that encompasses a broad range of digital platforms.

This includes not only the apps themselves but extends to App Stores and internet hosting providers. That’s because the bill states that any “website, desktop application, mobile application, or augmented or immersive technology application” that is “determined by the President to present a significant threat to the National Security of the United States” could be targeted.

Related: Joe Biden says there are “lots of ways” Elon Musk could be investigated over Twitter acquisition

The Details of the Bill

The bill effectively introduces a mechanism akin to a kill order at the app store or hosting level, preventing the distribution of any app or website identified under this category (Sec. 2(a)(1)).

Defining what constitutes a “foreign adversary controlled application” (FACA) is crucial to understanding the bill’s impact.

The current definition of “foreign adversary” includes China, Russia, Iran, and North Korea.

The criteria for being “controlled by a foreign adversary” are threefold: the company must be based in, headquartered in, or legally formed under the laws of a foreign adversary country; have significant ownership (at least 20%) from one of these countries; or be subject to the direction or control of a foreign person or entity from these countries (Sec. 2(g)(1)).

The ambiguity of the phrase “subject to the direction of a foreign person or entity” has garnered significant attention for its potential to broadly encompass a range of companies, including those in the US, under certain circumstances.

What is the basis for determining what is “subject to the direction” of a foreign person or entity?

ByteDance or TikTok-operated websites, desktop apps, mobile apps, or VR apps automatically fall under both definitions (Sec. 2(g)(3)), but that doesn’t mean that those definitions could be applied to other apps or websites in the future. Additionally, the scope widens to potentially include almost any social or content-sharing platform, desktop app, mobile app, or VR app with over 1 million monthly active users. For such platforms to be labeled as FACA, they must be under the control of a foreign adversary and deemed a significant threat to US national security by the President (Sec. 2(g)(1), 2(g)(2)).

For a company to be officially recognized as a national security threat under this bill, the President is required to issue both a public notice and a report to Congress (Sec. 2(g)(3)). Once designated as a FACA, the entity has 180 days to divest to avoid a complete ban, with the President determining the criteria for acceptable divestiture (Sec. 2(g)(3), 2(g)(6)).

Enforcement of the bill falls to the Attorney General, who can investigate potential violations and take legal action in federal district court. The primary consequence for non-compliance is a substantial fine, calculated at $5,000 per user. This means, for example, that Apple could face a staggering $500 billion fine if all 100 million American TikTok users accessed the app through its platform.

The First Amendment

Regardless of the potential overreaching language in the bill, the bill itself also faces a First Amendment challenge.

Other scrutiny centers on the constitutional dilemmas the bill presents, notably regarding the First Amendment rights of not just TikTok, but also its users and American companies, such as the Apple and Google app stores that host the app. This concern stems from the possibility of Americans losing a chosen platform for expression and the government imposing restrictions on app stores about their offerings.

The enforcement of any ban would require the government to convincingly demonstrate that such action is essential for a compelling government interest and is the least restrictive way to achieve that interest.

A recent case in Montana, where a federal district court stopped a TikTok ban, highlighted these constitutional challenges, citing the First Amendment. The court’s decision was based on the assessment that the ban might not withstand even intermediate scrutiny.

If the proposed law to ban TikTok were enacted, its constitutionality would hinge on several critical aspects. First, the courts would need to assess whether the government’s national security concerns, which form the basis of the ban, are compelling enough. Furthermore, the specificity of these security concerns would be under scrutiny, beyond just broad or vague allegations.

Even if the national security interest is deemed compelling, the courts would then evaluate whether there are alternative, less restrictive methods available to address these concerns.

Considering that other less speech-restrictive measures might be sufficient, the government faces the challenge of building a robust case to justify such drastic steps as necessary, based on current publicly available evidence.

The impact of the proposed ban extends beyond TikTok. The app, with its global user base of approximately 1.5 billion monthly active users, including about 150 million in the United States, offers a unique platform for self-expression. The existence of other platforms for short-form video content doesn’t negate the issue of the government eliminating a speech platform.

Furthermore, the proposed ban could significantly affect American companies. The responsibility for implementing such a ban would largely fall on US companies that facilitate TikTok’s availability, including app stores and web browsers. This situation could lead to the government effectively dictating to these companies what they can or cannot offer, a notion that contrasts sharply with the principles of freedom of speech and choice.

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