About the threat to ban TikTok
Posted: Sat Apr 29, 2023 12:28 pm
I've never been a user of TikTok, and part of it might be, even though I love music and I have interests in technology, I'm 62 years old. I'll admit, I've released a vertical (cell phone) video on YouTube, because nobody told me back then if you rotate the phone 90 degrees you get a regular landscape orientation picture.
Well anyway, I have no dog in this fight, and it will not matter to me personally if this service is banned, I see serious Constitutional issues arising with this action. TikTok is clearly a communications platform, it has the right to communicate under the First Amendment. Additionally, it would almost certainly have standing to raise the First Amendment rights of its users who, in effect, are being silenced. I am considering that I can't see what grounds they would have to prohibit private individuals from using it, or app stores from providing the means to access it. A complete ban on a means of communication is such a huge and drastic step, I can't see any court doing no less than issuing an immediate temporary restraining order blocking such a ban. The government would have to justify its action based on "strict scrutiny," a very tough standard. As far as I can tell, a judge wold find a law allowing this unconstitutional and issuing a permanent injunction against its enforcement.
To withstand a First Amendment challenge, there must be some particular type or class of communication that is in some way a problem, the means to fix that problem must be narrowly tailored and have been restricted to specific time, manner, and place requirements. First, they can't argue there is a threat to national security, nobody is passing secrets around. Byte Dance, its owner, has stated that data of US users is not kept outside the US. The government would have to show that is not the case, and then how sharing of individual's published videos with the Chinese government, presuming it did so, compromises national security. I think that argument has been precluded, since Federal employees are not permitted to install TikTok on government-issued phones.
Now, the government is probably going to try to claim banning the app or restricting their hosing does not affect First Amendment issues, but is just related to a commercial transaction. That argument is about as thin as toilet paper, and just as weak. If the government prohibited a newspaper from getting newsprint, or ink, or phone service, or a YouTube/TikTok content creator from purchasing video cameras or memory cards, yes, those are commercial transactions, but are critical in order to exercise a First Amendment protected right.
The Supreme Court rejected the completely banning of a media outlet in the case of Near v. Minnesota, 283 U.S. 697 (1931), in which a state law allowed a government official to shut down a newspaper because of the content of articles, constituted an unlawful prior restraint. There is also the financial value. If the government stops app stores from offering the product, there is also their right to contract with the publisher of the App. And the customer base that is being taken away, this may violate the Takings Clause of the Fifth Amendment. I believe that simply making their app illegal, or trying to make app stores not offer it, without notice or hearing, is also a violation of the Due Process Clause of the Fifth Amendment.
I mean, I'm not even a lawyer and I can spot at least four Constitutional violations.
Another reason is societal. If we do this sort of thing, it makes us look like the worst bunch of hypocrites, by, in effect, banning certain speech based on whether we like the company publishing it. If the US just bans TikTok, how does that make it any different from the Chinese government and its speech bans. I think the last thing we want to do is emulate the behavior of the Butchers of Beijing.
Well anyway, I have no dog in this fight, and it will not matter to me personally if this service is banned, I see serious Constitutional issues arising with this action. TikTok is clearly a communications platform, it has the right to communicate under the First Amendment. Additionally, it would almost certainly have standing to raise the First Amendment rights of its users who, in effect, are being silenced. I am considering that I can't see what grounds they would have to prohibit private individuals from using it, or app stores from providing the means to access it. A complete ban on a means of communication is such a huge and drastic step, I can't see any court doing no less than issuing an immediate temporary restraining order blocking such a ban. The government would have to justify its action based on "strict scrutiny," a very tough standard. As far as I can tell, a judge wold find a law allowing this unconstitutional and issuing a permanent injunction against its enforcement.
To withstand a First Amendment challenge, there must be some particular type or class of communication that is in some way a problem, the means to fix that problem must be narrowly tailored and have been restricted to specific time, manner, and place requirements. First, they can't argue there is a threat to national security, nobody is passing secrets around. Byte Dance, its owner, has stated that data of US users is not kept outside the US. The government would have to show that is not the case, and then how sharing of individual's published videos with the Chinese government, presuming it did so, compromises national security. I think that argument has been precluded, since Federal employees are not permitted to install TikTok on government-issued phones.
Now, the government is probably going to try to claim banning the app or restricting their hosing does not affect First Amendment issues, but is just related to a commercial transaction. That argument is about as thin as toilet paper, and just as weak. If the government prohibited a newspaper from getting newsprint, or ink, or phone service, or a YouTube/TikTok content creator from purchasing video cameras or memory cards, yes, those are commercial transactions, but are critical in order to exercise a First Amendment protected right.
The Supreme Court rejected the completely banning of a media outlet in the case of Near v. Minnesota, 283 U.S. 697 (1931), in which a state law allowed a government official to shut down a newspaper because of the content of articles, constituted an unlawful prior restraint. There is also the financial value. If the government stops app stores from offering the product, there is also their right to contract with the publisher of the App. And the customer base that is being taken away, this may violate the Takings Clause of the Fifth Amendment. I believe that simply making their app illegal, or trying to make app stores not offer it, without notice or hearing, is also a violation of the Due Process Clause of the Fifth Amendment.
I mean, I'm not even a lawyer and I can spot at least four Constitutional violations.
Another reason is societal. If we do this sort of thing, it makes us look like the worst bunch of hypocrites, by, in effect, banning certain speech based on whether we like the company publishing it. If the US just bans TikTok, how does that make it any different from the Chinese government and its speech bans. I think the last thing we want to do is emulate the behavior of the Butchers of Beijing.