The TikTok Ban: A First Amendment Conundrum

By: Nimra Salehjee

In a significant move, the United States House of Representatives has passed a bill aimed at addressing national security concerns associated with the popular social media platform, TikTok.[1] The bill, which has garnered bipartisan support, proposes compelling the sale of TikTok from its Chinese owner, ByteDance, or facing an outright ban within the country.[2] This development underscores the escalating tensions surrounding data privacy and foreign influence, particularly in the realm of social media.[3] However, amidst these efforts to bolster national security, questions arise regarding the potential infringement on the First Amendment right to free speech, sparking a contentious debate on the balance between security imperatives and individual liberties in the digital age.[4]

The national government isn’t alone in looking at a domestic TikTok ban. In 2023, Montana lawmakers ignited controversy with a proposed ban on TikTok, citing parallel concerns over data privacy and national security.[5] The U.S. District Court for the District of Montana held that the ban had failed to pass intermediate scrutiny review and thus likely violating the First Amendment, where the highest level of scrutiny is applied.[6] While the state aimed to address concerns regarding data privacy and national security, the court held that the ban’s broad scope infringed upon First Amendment rights without providing concrete evidence of imminent harm.[7] As such, the court deemed it unconstitutional, underscoring the necessity for clear, proportionate regulations that uphold both security concerns and individual freedoms.[8]

The First Amendment stands as a cornerstone of American democracy, guaranteeing the rights of free speech, expression, and assembly.[9] It serves as a bulwark against governmental overreach and censorship, ensuring that individuals have the liberty to voice their opinions and engage in discourse without fear of suppression.[10] However, the TikTok ban, in essence, represents a government-imposed restriction on the freedom of expression, thereby raising significant constitutional concerns.[11]

One of the primary arguments against the TikTok ban is its infringement on the rights of users to access and share information freely. TikTok, like other social media platforms, serves as a virtual public square where individuals can exchange ideas, express themselves creatively, and participate in cultural dialogue.[12] By banning TikTok, the government impedes this exchange of ideas, limiting the diversity of voices and viewpoints available to the public.[13] In doing so, it not only stifles individual expression but also undermines the marketplace of ideas essential for a vibrant democracy.[14]

Furthermore, the TikTok ban sets a dangerous precedent for government intervention in digital spaces. In an era where social media plays an increasingly significant role in shaping public discourse and civic engagement, allowing the government to dictate which platforms can operate undermines the principles of an open internet.[15] It grants authorities unchecked power to suppress dissenting voices and manipulate the flow of information, eroding the foundations of democracy in the digital age.[16]

Additionally, the rationale behind the TikTok ban, namely concerns over data privacy and national security, lacks substantive evidence to justify such drastic measures.[17] While safeguarding national interests is undoubtedly paramount, blanket bans on platforms like TikTok are a disproportionate response that fails to address underlying issues effectively.[18] Instead, policymakers should pursue targeted regulatory measures that balance security concerns with the preservation of fundamental rights.[19]

The TikTok ban represents a troubling encroachment on the First Amendment rights of individuals and sets a concerning precedent for governmental censorship in the digital sphere.[20] While legitimate concerns about data privacy and national security exist, the solution lies in nuanced regulation that upholds democratic principles rather than resorting to sweeping bans.[21] As guardians of free expression, it is imperative for citizens and policymakers alike to safeguard the fundamental freedoms enshrined in the First Amendment, both online and offline. Only through a concerted effort to uphold these principles can we ensure the preservation of a robust and inclusive public discourse in the digital age.

[1] Sapna Maheshwari, David McCabe and Annie Karni, House Passes Bill to Force TikTok Sale From Chinese Owner or Ban the App, (March 13, 2024).

[2] Id.

[3] Sapna Maheshwari and Amanda Holpuch, Why the U.S. Is Weighing Whether to Ban TikTok, (March 12, 2024).

[4] James Andrew Lewis, TikTok and the First Amendment, (November 14, 2022).

[5] Anna Conley, TikTok v. Montana – State TikTok Ban Blocked by Court Based on Foreign Affairs Preemption, (Feb, 6 2024).

[6] Samantha Alario, et al., and Tiktok Inc., v. Austin Knudsen, Case 9:23-cv-00061-DWM. (Nov. 30, 2023).

[7] Id.

[8] Id.

[9] U. S. Const. amend. I.

[10] Cornell Law School, First Amendment Overview, Legal Information Institute

[11] Jennifer Huddleston, Could the Latest TikTok “Ban” Pass Constitutional Muster?, cato institute, (March 12, 2024 1:18PM).

[12] Mohamed Sayed, TikTok: Revolutionizing the Digital World and Redefining Content Creation, (August 2, 2023).

[13] Joe Cote, What Will Happen if TikTok is Banned, snhu, (Mar 20, 2024).

[14] Spence Purnell, House Tiktok Ban Is Unconstitutional And Would Not Make America Safer, reason foundation, (March 18, 2024).

[15] Id.

[16] David Ingram and Kat Tenbarge, Critics Renew Calls For A Tiktok Ban, Claiming Platform Has An Anti-Israel Bias, nbc news, (Nov 1, 2023, 11:32 AM).

[17] Lauren Leffer, Banning TikTok Would Do Basically Nothing to Protect Your Data, (Mar 29, 2024, 5:30 PM).

[18] Id.

[19] Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, congressional research service, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/ (Updated March 15, 2024)(“Other legislative proposals in the 118th Congress would create new restrictions on crossborder transfer of personal data by subjecting some categories of personal data to export controls. Another set of bills would require companies to provide notices to U.S. users if the companies’ apps are banned from U.S. government devices, have certain connections to the PRC or Chinese Communist Party (CCP), or allow the PRC or CCP to access Americans’ user data.”)

[20] Masood Farivar, Is Banning TikTok Constitutional?, (March 31, 2023, 3:14 AM).

[21] Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress.

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