TikTok ban forgets the lessons of the Pentagon Papers

March 25, 2024
Solen Feyissa, CC BY-SA 2.0, via Wikimedia Commons.

Avril Haines, the US director of national intelligence, said recently that officials “can’t rule out” the possibility of China using TikTok to influence the 2024 election. Plenty of others have expressed their alarm about the ways China could use TikTok to undermine our national security.

Just one problem: the First Amendment doesn’t allow censorship “just in case.” It was downright reckless for the House to pass legislation to effectively ban TikTok the day after Haines’s comments, without any proof of the kind of imminent and grave threat that the Constitution would require to justify that kind of unprecedented mass censorship.

TikTok is used by around 150 million Americans. That includes President Joe Biden, as well as plenty of journalists who use the platform to report and to find stories and sources. Independent journalist Jonathan Katz, for example, used TikTok to expose misleading information from Sen. Katie Britt’s State of the Union rebuttal. Banning TikTok is, in effect, a prior restraint on all of that journalism, with no regard for whether it contains Chinese propaganda.

Here’s what else can’t be ruled out: that banning TikTok, based on its alleged surveillance and propagandizing of Americans, will set a precedent for all sorts of future censorship, including bans on foreign news sites. And yes, forcing a sale of TikTok is effectively a ban. Imagine the government ordering The Guardian to sell itself to an approved buyer. 

If the US government bullying or banning a British newspaper sounds unlikely, what about media owned by current US adversaries, like Russian-owned RT? Some countries banned it when Russia invaded Ukraine. The US did not, presumably because officials recognized the Constitution wouldn’t tolerate that. Why can’t the same logic behind banning TikTok, which by all current indications China does not own, support banning RT, which Russia does?

And while RT is a uniquely unsympathetic outlet, the slope gets slippery from there. Consider Qatari-funded Al Jazeera. Surely it has plenty of information on the viewing and clicking habits of the millions of Americans who read it online. And the Biden administration is concerned enough about its influence that it has reportedly pressured it to “turn down the volume” of its criticism of Israel. A future administration could easily view that as ban-worthy. 

The concern that censorship could spread beyond TikTok is heightened because the bill the House passed allows for future bans of not just other social media applications but any platform allowing user interaction that the president deems a threat to national security. At least for other platforms, the president is required to issue a report describing the specific national security concern justifying censorship (with the details likely hidden in a “classified annex”). 

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The criteria are shockingly vague, but at least it’s more than the “can’t rule it out” reasoning for censoring TikTok, regarding which no president has issued any such report. The double standard is an implicit admission by the bill’s drafters that the speculation-based TikTok ban is constitutionally inadequate. 

The reality is that even definitive proof that a platform is propagandizing or surveilling Americans wouldn’t justify censorship. The Pentagon Papers case established that “national security” isn’t a magic word that nullifies the First Amendment—and there, the alleged threat was to troops’ lives, not college kids’ political thought. Nonetheless, Justice Hugo Black explained that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Years before that, the Supreme Court rejected a law delaying mail containing “communist political propaganda.” The Supreme Court said the law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” But even that unconstitutional law was narrow compared with a complete ban on TikTok, which would prevent millions of Americans from using their preferred medium to speak online.

In other words, Americans have the right to consume foreign propaganda if they choose, and foreigners don’t need to stay on US politicians’ good side to be able to speak to Americans. That’s why courts have rejected the Trump administration’s efforts to ban TikTok (Trump has since reversed himself, and now opposes a ban) as well as the state of Montana’s prohibition

The TikTok ban is far more problematic than the communist mail delay because it’s not the least bit targeted—it seeks to shutter TikTok’s whole operation. The Supreme Court has also rejected efforts to shut down entire bookstores and media outlets, even if they allegedly carried some illegal content. Lawmakers aren’t even claiming that TikTok’s content is illegal, just that they dislike some of it for being false or misleading. 

Sure, TikTok is used to spread lies. That’s true of every social media outlet. But Congress could reduce Americans’ susceptibility to disinformation by cutting down on excessive government secrecy, which breeds conspiracy theories and distrust. That would not only be more effective than censorship but would strengthen, not undermine, First Amendment freedoms. TikTokers might not have been so fascinated by Osama bin Laden’s ridiculous and genocidal manifesto if they hadn’t been raised on “they hate us for our freedom.”

After all, while TikTok (and any other social media platform) can be abused to spread foreign propaganda, it is also a helpful tool in combating domestic propaganda. Could our government have misled Americans about the Vietnam War nearly as effectively if TikTok existed? 

Perhaps because the “propaganda” justification for the ban is so flimsy, lawmakers have raised the alarm about Chinese surveillance of TikTok users as a fallback basis for censorship. Those claims are every bit as nebulous. If that were really the concern, Congress would pass a data privacy law binding American platforms too, as well as data brokers that TikTok could continue to buy Americans’ data from even after a ban. No one can explain how TikTok user data in the hands of Chinese spies would justify an unprecedented prior restraint, particularly when they can easily get the same data elsewhere.

Former Treasury secretary Steven Mnuchin, who wants to buy TikTok, says “there’s no way that the Chinese would ever let a US company own something like this in China.” It’s true that China bans US platforms. But the US shouldn’t be resorting to stooping to authoritarians’ levels, and that’s exactly why a bill that kicks open the door for it to do just that is so troubling. Russia, for example, recently declared US-funded Radio Free Europe/Radio Liberty an undesirable organization, requiring it to stop all work inside Russia. By banning TikTok, the US lowers its moral standing to oppose those kinds of shameful antics. 

If the Senate passes this unconstitutional TikTok ban, and the White House lets it stand, then what we really “can’t rule out” is the US becoming every bit as censorial as the adversaries it claims to be defending us against. 

Seth Stern is a First Amendment lawyer and the director of advocacy for the Freedom of the Press Foundation, a nonprofit organization dedicated to protecting public interest journalism.