TikTok Ban
continued
The national security v. free speech debate is certainly nothing new. In May 1798, right before the passage of the Sedition Act – a law that made it a crime for American citizens to “print, utter, or publish... any false, scandalous, and malicious writing” about the American government – James Madison, the “Father of the Constitution” himself, wrote a letter to Thomas Jefferson that said:
The management of foreign relations appears to be the most susceptible of abuse, of all the trusts committed to a government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging and are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger real or pretended from abroad.
Fast-forward 173 years to 1971, when, in the case of New York Times v. U.S., the U.S. Supreme Court rejected the federal government’s request to block The New York Times and The Washington Post from publishing the Pentagon Papers, a classified report criticizing the U.S. government’s conduct during the Vietnam War. This case, just like TikTok’s, asked U.S. Courts to preemptively block speech in the name of national security. However, back then, the high Court found that “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”
In his concurring opinion, Justice Hugo Black said, “Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people.” He continued, “We are asked to hold that despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security’…. the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” Justice William Douglas then added, “Open debate and discussion of public issues are vital to our national health.”
Here are 1787’s issues and concerns:
ONE
Let’s get real here. This isn’t about “national security” in terms of how we generally think of it (i.e., protecting borders). This is about the government trying to protect the American people from themselves.… which just reeks of paternalism. Since when did Americans need the all-powerful Oz to tell us what information we should – or should not – absorb? In its essence, this implies that the American public is easily manipulated and incapable of thinking for themselves.
This must be Congress’ main reasoning because this inconsistent, toothless ban does virtually nothing to protect the American people against “national security” threats. For one, the Chinese government doesn’t even need TikTok to get public information on Americans. They can simply purchase piles of private data from data brokers who, because we don’t have even the most basic data privacy regulations, have a limitless supply.
Plus, the United States can’t and won’t ban every technology from China. After all, are we going to scrap Lenovo computers, TP-Link WiFi routers, and Motorola smartphones? Are we going to disallow Chinese car battery technology? We imagine Ford, who is building a $3.5 billion battery factory in Michigan based on Chinese technology, would have something to say about that. And what about Xbox and PlayStation 4? We imagine your kids will have plenty to say about that!
We guarantee you that the United States will do none of these things. 1787 wholeheartedly agrees with the very first federal court that heard anything about a TikTok ban – the one that blocked President Trump’s 2020 Executive Order that used the International Emergency Economic Powers Act to try to ban TikTok if it didn’t divest its ownership (yes, Donald was for the ban back then) – that singling out one company is “arbitrary and capricious.”
… which raises yet another question. It’s obvious TikTok is being targeted, but why? TikTok is far from the only foreign social-media platform that gathers tons of user information on Americans. It isn’t even the only Chinese-owned app that does. What about the messaging app WeChat, or two of the fastest-growing shopping apps used in America, Temu and Shein? TikTok isn’t even the only app in the U.S. that is made by ByteDance, which is responsible for two of the other top 10 most downloaded iPhone apps here: the video-editing app CapCut and Lemon8, an app much like Instagram.
According to an analysis by cybersecurity firm Home Security Heroes that assessed data collection, user control, security, and user experience patterns for different applications, 68 percent of social media apps track their users’ data for advertising and marketing. Oh, snap! This study must have busted TikTok for stealing all our info! Nope. The group discovered that “Threads and Instagram are the worst social media platforms for protecting user privacy.” Uh oh.
Mark Zuckerberg’s Meta universe – which includes Instagram, Threads, Facebook, and Messenger – “tracks an astonishing 86 percent of personal information.” This can include data related to your health, financial information, contact information, browsing history, location, purchases, and much more.
What makes this revelation worse is that we also know, thanks to the Report on the Investigation into Russian Interference in the 2016 Presidential Election (i.e., the Mueller report) that Meta is among the worst, if not THE worst, offenders in helping spread false and misleading information.
TWO
So, what’s this really about? We believe there are two main things going on here. First, this law gives politicians permission to block practically anything they want when it comes to foreign powers, simply by citing “national security” concerns.
This is already happening. On January 3, 2025, President Biden said that his administration had the right to block the sale of U.S. Steel to Nippon Steel of Japan based on “national security” concerns. Never mind that almost a quarter of Nippon Steel is owned by non-Japanese entities.
And wait a second! Hasn’t Japan been one of our closest allies for decades? Don’t we have 54,774 active-duty troops there, and don’t over 90 percent of Japan’s defense imports come from the United States? And doesn’t Nippon Steel already own a financial stake in eight American steel companies, which employ roughly 4,000 Americans?
Yes, all that is true. So, it can’t really be that Joe Biden sees Japan as a threat, right? Hmmm… Oh, okay! Maybe Joe is saying that we need to keep U.S. Steel under American ownership for when and if we go to war? After all, if we go to war, we may need the steel?
Well, it’s probably not that either, because the U.S. Department of Defense doesn’t even purchase directly from U.S. Steel and, according to the Pentagon, because modern combat systems use other materials like titanium, aluminum, and composites more than steel, the U.S. military only needs 3 percent of total domestic steel production to meet its procurement obligations.
William C. Greenwalt, the former deputy undersecretary of defense for industrial policy in both George W. Bush administrations, went even further. In a recent article, he said that, besides the few plants that still produce defense-grade armor, the steel industry “has not only been mostly worthless to national security it has arguably become detrimental to it” because of the “domestic source restrictions that torture DoD’s supply chain to buy de minimis levels of steel found in products such as casings, fasteners and spare parts, often at higher prices than it could buy from abroad.”
And for what? When the U.S. Defense Department desperately needed more steel in the 2000s for its Mine-Resistant Ambush Protected program, most U.S. steel companies declined to help, forcing the U.S. to buy its steel from Sweden, Germany, Isreal and Australia.
Meanwhile, Nippon Steel has offered to pay $5 billion above U.S. Steel’s market capitalization (even though the company that was once America’s first billion-dollar corporation has lost money in nine of the past 15 years); spend $2.7 billion modernizing U.S. Steel’s production facilities; keep U.S. Steel’s headquarters in Pittsburgh; honor all union contracts; give $5,000 bonuses to the company’s steelworkers; and allow the U.S. government to reject any reductions in U.S. Steel’s production capacity.
So, what exactly is Joe’s problem, then? A-ha! We find our answer in the fourth paragraph of President Biden’s January 3rd statement: “It is my solemn responsibility as president to ensure that, now and long into the future, America has a strong domestically owned and operated steel industry that can continue to power our national sources of strength at home and abroad; and it is a fulfillment of that responsibility to block foreign ownership of this vital American company. U.S. Steel will remain a proud American company – one that’s American-owned, American-operated, by American union steelworkers – the best in the world.”
Yep, there it is, in black and white. This is not about “national security” at all. It’s about the fact that the United Steelworkers Union is opposed to the deal, and Democrats desperately need the votes of its one million members in Pennsylvania, Ohio, Michigan and Wisconsin. We, on the other hand, need a shower.
The second thing this is really about is this: Members of the United States Congress don’t like what’s on TikTok, plain and simple.
Rep. Mike Gallagher (R-WI) – who once called TikTok “digital fentanyl” – seemed to speak for many Members of Congress when he said, “There are two threats. One is what you could call the espionage threat. It’s data security – using the app to find Americans, exfiltrate data, track the location of journalists, etc. That’s a serious threat, but I actually think the greater concern is the propaganda threat… If TikTok continues to establish itself as the dominant news platform in America and if the algorithm remains a black box and subject to the control of ByteDance and, by extension, the Chinese Communist Party, you’re placing the control of information – like what information America’s youth gets – in the hands of America’s foremost adversary.”
Rep. Nancy Pelosi (D-CA) wrote in a press release that “repressed communities in China – from the Uyghurs to Tibetans to the people of Hong Kong, and others – are telling us that their stories of their suffering are being blocked or misrepresented on TikTok. At the same time, the CCP is spreading propaganda to cover up its heinous abuses. We cannot allow Beijing to bury the truth of its abysmal record on human rights.”
In a statement issued by the House Select Committee on the Chinese Communist Party, several Members made clear they were motivated by the propagation of concerning information on TikTok.
Rep. Elise Stefanik (R-NY) condemned TikTok as “Communist Chinese malware that is poisoning the minds of our next generation. From proliferating videos on how to cross our border illegally to supporting Osama bin Laden’s Letter to America, Communist China is using TikTok as a tool to spread dangerous propaganda that undermines American national security.” Rep. Mikie Sherrill (D-NJ) blasted TikTok for “promoting propaganda that is favorable to autocratic rulers like President Xi.” Rep. John Moolenaar (R-MI) fretted that we “cannot allow the CCP to indoctrinate our children,” and Rep. Ashley Hinson (R-IA) denounced TikTok as a pathway for the Chinese to “push harmful propaganda, including content showing migrants how to illegally cross our Southern Border, supporting Hamas terrorists, and whitewashing 9/11.”
Several Members of Congress even went as far as to cite specific ideology-based policy issues as reasons for supporting the ban – which kind of blows their “national security” claims right out of the water. Rep. Mike Gallagher blamed TikTok for the “majority of young Americans holding such a morally bankrupt view of the world? Where many young Americans were rooting for terrorists who had kidnapped American citizens – and against a key American ally? Where were they getting the raw news to inform this upside-down world view?”
Senator Maria Cantwell (D-WA) alleged that “foreign policy issues disfavored by China and Russian governments had fewer hashtags on TikTok, such as pro-Ukraine or pro-Israeli hashtags.” Senator Pete Ricketts (R-NE) wants the ban because the Chinese Communist Party allegedly uses TikTok “to skew public opinion on foreign events in their favor,” including by promoting hashtags like “StandwithKashmir” and “pro-Palestinian and pro-Hamas hashtags.”
In other forums, Senator Marsha Blackburn (R-TN) claimed that TikTok is “soft propaganda” and supported the ban because the Chinese Communist Party must not “be able to control what our young people see and say and think, and Senator Josh Hawley (R-MO) called TikTok a “propaganda machine for the Communists.”
They’re not even trying to hide it. This is clearly about content moderation.… which is confusing because, in yet another contradiction, the U.S. Supreme Court just ruled against something like this happening.
On July 1, 2024, in the case Moody v. NetChoice, LLC, the Supreme Court rejected, in a 9-0 vote, the argument that state legislatures could override American social media platforms’ content-moderation decisions to correct perceived bias against conservatives. Speaking for the high Court, Justice Elena Kagan wrote, “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”
This is far from the only decision the U.S. Supreme Court has made that forbids the government from suppressing speech simply because it’s knowingly false, and that misinformation – however disconcerting – must be addressed by something other than censorship.
< Sidebar: One of the creepiest, most hypocritical things about this is how Congress and the Supreme Court are trying to have us believe this is not censorship when it very clearly is (how’s that for distortion and manipulation?). Merriam-Webster’s definition of censorship is “the act of suppressing or restricting information, speech, or communication.” >
Lamont v. Postmaster General (1965) – a landmark case that called unconstitutional a requirement that Americans wishing to receive “communist political propaganda” by mail had to notify the postal service beforehand – makes clear that First Amendment rights are paramount, even if the misinformation and/or propaganda is offensive or comes from foreign sources. The decision made in the case prohibits the government from trying to “control the flow of ideas to the public” and declares it “the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.”
In Brown v. Hartlage (1982), a case that involved a broken political campaign promise, Justice William Brennan wrote that the First Amendment “embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad,” and in United States v. Alvarez (2012), a case that assessed whether the Stolen Valor Act violated the Free Speech Clause of the First Amendment, the Supreme Court found that false statements alone don’t take speech outside the First Amendment.
The TikTok ban feels like something that only happens in repressive regimes. China’s “Great Firewall” has existed for decades, keeping practically all outside information from its people. All leading news sites are banned, as are Facebook, X, Instagram, YouTube, WhatsApp, Threads, Signal, and Telegram. In Hong Kong, China shut TikTok down completely as part of its systematic crackdown on the pro-democracy movement there.
The French government banned TikTok in its territory of New Caledonia for two weeks in May 2024 after violent riots broke out after local elections, justifying the ban by saying TikTok was a vehicle for spreading “misinformation” fueled by “foreign countries and spread by rioters.” Sound familiar? That same month, the Israeli government shut down Al Jazeera’s operations in Israel.
Right after invading Ukraine, Russia blocked access to Facebook, Twitter, and all major foreign news outlets, and the Indian government has used its Foreign Contribution Regulation Act – a law that is supposed to regulate the amount of foreign money that can enter the country – to silence civil society in multiple ways in India.
If these examples aren’t a bad sign, then we don’t know what is. And don’t forget, the United States already tried something like this in 1952, when Congress passed the McCarran-Walter Act to restrict the American public’s access to foreign speech – and now we look back at it, horrified.
At first glance, the McCarran-Walter Act set immigration and citizenship guidelines for America. But it also contained provisions aimed at stopping “subversion,” and established new ideological grounds for excluding people from the country. These included anarchists, Communists, and people whose “activities” would be “prejudicial to the public security” and “prejudicial to the national defense.”
Congress was forced to override the veto of President Harry Truman to pass the law, who believed the legislation was a form of thought control, a “mockery of the Bill of Rights,” and a “long step toward totalitarianism.”
President Truman warned that the law would “destroy all that we seek to preserve, if we sacrifice the liberties of our citizens,” and that “unwise or excessive security measures can strike at the freedom and dignity of the individual which are the very foundation of our society.”
Boy was he ever right about that! The McCarran-Walter Act was eventually used to target a multitude of political and cultural figures. After Congress voted to fundamentally revise it in 1987, Senator Daniel Patrick Moynihan (D-NY) said, “I don’t think we have appreciated the hurt this legislation has done the United States over the years. It presented us as a fearful and subliterate and oppressive society.” Rep. Barney Frank (D-MA), one of the chief sponsors of the revision, said it was “the worst law I’ve ever seen.”
In the Supreme Court case United States v. Alvarez, Justice Kennedy said, “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”
The bottom line is that suppressing speech is not an acceptable means of countering misinformation. Although concerns about fake news and distorted information are legitimate, the best way to fight propaganda is by countering it with truth, not censorship. Please believe us when we say this is not a thread we should pull on.