The news has recently had almost daily stories about the social media app, Tik Tok, and Congress’ threat to make using it illegal unless its ownership is transferred from its present Chinese owners. The argument for requiring the removal of Chinses owners is that they require access to personal and confidential information and that poses a national security risk. I have seen tech experts who question whether transferring ownership will actually eliminate that threat. They suggest that if the computer code for the Tik Top app already contains a “backdoor” enabling the secret access to information, changing ownership will not correct the problem.
This blog is not intended to discuss those issues. Instead, we will address the claims by many that preventing people from using Tik Tok is a First Amendment free speech violation. I suggest that it is not.
This is a tidbit to keep for your next Trivia Night. The First Amendment was originally only intended to prohibit the federal government from interfering with free speech. It was not until 1925, in Gitlow v. New York, that the United States Supreme Court held that the First Amendment prohibited all levels of government (states and local governments) from interfering with free speech.
A government can limit speech if doing so is content neutral. As the United States Supreme Court has explained, “A regulation of speech is facially content based under the First Amendment if it ‘target[s] speech based on its communicative content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.’” City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61 (2022). Thus, where a transit system prohibited all advertisements on its premises, the Court held that the limit was constitutional because it applied to all subjects and opinions. In contrast, a limitation on a single message is not permitted. In Ctr. for Investigative Reporting v. SEPTA, 975 F.3d 300, 303 (3d Cir. 2020), a Court of Appeals ruled against a public transit agency’s refusal to accept advertisements that were political or discussed matters of public debate. The regulation was not content neutral.
The prohibition against Tik Tok would likely be found constitutional because the prohibition is not based on a specific subject or viewpoint.
There is one other issue that must be raised --- it is highly unlikely that a government could prohibit all means of public forums for speech. Even if content neutral, it is unlikely that a government could prohibit all social media any more than it could prohibit all newspapers. However, in the case of Tik Tok, prohibiting it from operating in the United States does not effectively prohibit all means of public forums as several other social media platforms still exist.
Thus, the often-voiced opinion that eliminating Tik Tok denies its users their First Amendment rights is inaccurate.