It’s unfortunately commonplace around the world for governments to invoke national security as a pretext for denying their citizens access to media. Historically, the United States has been a vocal critic of this practice. During the Cold War, U.S. opposition to restrictions on the international flow of information and ideas helped define the United States as a free society in the eyes of the world. In more recent years, the United States has often condemned governments that deny their citizens access to American social media and messaging platforms.
Against this background, it is disconcerting, at least, to see the U.S. government threatening to ban TikTok, an app used by more than 150 million Americans. Fortunately, the United States has something that many other countries don’t: strong constitutional protections for free speech that extend to the right to access social media as well as the right to receive information from abroad. Those protections don’t necessarily mean the government won’t ultimately be able to ban TikTok. But if it’s going to shut down a major social media platform, it will have to come up with better reasons than it’s offered so far.
In an article published by the New York Times this morning, I explain why this is so—and why it is an important feature of our system, not a bug, that the government can’t interfere with Americans’ access to social media without carrying a heavy justificatory burden. As I argue:
The First Amendment has so far played only a bit part in the debate about banning TikTok. This may change. If the U.S. government actually tries to shut down this major communications platform, the First Amendment will certainly have something to say about it.
Perhaps the reason First Amendment rights haven’t received more attention in this debate already is that TikTok is a subsidiary of ByteDance, a Chinese corporation that doesn’t have constitutional free speech rights to assert. But setting aside the question of TikTok’s own rights, the platform’s users include more than 150 million Americans, as TikTok’s chief executive testified at a contentious congressional hearing on Thursday. TikTok’s American users are indisputably exercising First Amendment rights when they post and consume content on the platform.
Read the rest of the article here.