The following can be attributed to Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute:

“President Trump’s executive order doesn’t save TikTok. It just makes the app entirely dependent on his whims and consolidates his power over the digital public sphere. This isn’t a win for free speech and it certainly isn’t a win for the rule of law. Congress’s TikTok ban is terrible policy, but overriding a duly enacted law by executive fiat sets a dangerous and anti-democratic precedent.”

The Knight First Amendment Institute at Columbia University, along with Free Press and PEN America, filed an amicus brief in the case, arguing that the ban unjustifiably restricts Americans from accessing ideas, information, and media from abroad in violation of the First Amendment. Read the amicus brief here.

For more on the executive order, read the Knight Institute’s Xiangnong (George) Wang’s commentary in today’s Just Security, “President Trump’s Attempt to ‘Save’ TikTok is a Power-Grab that Subverts Free Speech” here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

The following can be attributed to Jameel Jaffer, executive director of the Knight First Amendment Institute:

“TikTok’s future will turn on politics, not on today’s ruling by the Supreme Court. But make no mistake, by allowing the ban to go into effect, the Supreme Court has weakened the First Amendment and markedly expanded the government’s power to restrict speech in the name of national security. Its implications for TikTok may be limited, but the ruling creates the space for other repressive policies in the future.”

The Knight Institute’s amicus brief urged the Court to scrutinize the ban especially closely, because it is viewpoint-motivated; “forecloses an entire medium of expression online”; and “recalls practices that have long been associated with the world’s most repressive regimes.” Furthermore, it noted that the government has no legitimate interest in banning Americans from accessing foreign speech, even if that speech reflects foreign manipulation, and that while the government has a legitimate interest in protecting Americans from covert propaganda and safeguarding their personal data, these interests can be achieved through less restrictive means. 

Read the Knight Institute’s brief here.

Read today’s opinion here.

Read more about the case here.

Lawyers on the case include Jameel Jaffer, Alex Abdo, Ramya Krishnan, and Xiangnong Wang from the Knight Institute.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

The following can be attributed to Jameel Jaffer, executive director of the Knight First Amendment Institute:

“As today’s argument made clear, this case is about much more than TikTok. It’s about whether the First Amendment permits the government to ‘protect’ Americans from foreign speech that the government views as dangerous by restricting them from accessing it. How the Court answers that question will affect TikTok, of course, but it will have much broader implications as well. If the Court upholds the ban, it will be giving the government sweeping new power to distort and manipulate discourse in the United States by restricting Americans’ access to foreign ideas and media.”

The Institute’s amicus brief urged the Court to scrutinize the ban especially closely, because it is viewpoint-motivated; “forecloses an entire medium of expression online”; and “recalls practices that have long been associated with the world’s most repressive regimes.” Furthermore, it noted that the government has no legitimate interest in banning Americans from accessing foreign speech, even if that speech reflects foreign manipulation, and that while the government has a legitimate interest in protecting Americans from covert propaganda and safeguarding their personal data, these interests can be achieved through less restrictive means. 

Read the amicus brief here.

Read more about the case here.

Lawyers on the case include Jameel Jaffer, Alex Abdo, and Xiangnong Wang from the Knight Institute.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

The following can be attributed to Jameel Jaffer, executive director of the Knight First Amendment Institute:

“Restricting citizens’ access to foreign media is a practice that has long been associated with the world’s most repressive regimes, and it would be deeply unfortunate if the Supreme Court let this practice take root here.  This law imposes a sweeping and unjustified restraint on Americans’ First Amendment rights, and the Court should strike it down for that reason.” 

The Institute’s amicus brief urged the Court to scrutinize the ban especially closely, because it is viewpoint-motivated; “forecloses an entire medium of expression online”; and “recalls practices that have long been associated with the world’s most repressive regimes.” Furthermore, it noted that the government has no legitimate interest in banning Americans from accessing foreign speech, even if that speech reflects foreign manipulation, and that while the government has a legitimate interest in protecting Americans from covert propaganda and safeguarding their personal data, these interests can be achieved through less restrictive means. 

Read the amicus brief here.

Read more about the case here.

The Knight Institute is available for comment before or after tomorrow’s argument. Contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

Lawyers on the case include Jameel Jaffer, Alex Abdo, and Xiangnong Wang from the Knight Institute.

“Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute. “Upholding the ban would do lasting damage to the First Amendment and our democracy.” 

In today’s brief, the groups urge the Court to scrutinize the ban especially closely, because it is viewpoint-motivated, because it “forecloses an entire medium of expression online”, and because it “recalls practices that have long been associated with the world’s most repressive regimes.” They note that the government has no legitimate interest in banning Americans from accessing foreign speech, even if that speech reflects foreign manipulation, and that while the government has a legitimate interest in protecting Americans from covert propaganda and safeguarding their personal data, these interests can be achieved through less restrictive means. 

“If our elected officials are concerned about the rampant harvesting of Americans’ personal data enabling the covert manipulation of public opinion, comprehensive data privacy legislation is the solution,” said Yanni Chen, policy counsel at Free Press. “Targeting a single social platform over specific content available on that platform not only violates our First Amendment rights, it also fails to solve an urgent problem plaguing our digital lives writ large.” 

“The right to receive information is a core tenet of the First Amendment that ensures the free transfer and sharing of information, literature, news, and artistic expression across borders,” said Eileen Hershenov, PEN America’s deputy CEO and counsel. “To allow the government to continue in its efforts to ban Tik Tok not only violates this right but creates a dangerous and slippery slope of viewpoint-based censorship that impedes the free exchange of ideas and expression.”

Earlier this year, the groups filed an amicus brief in the court of appeals  in support of TikTok and a group of content creators, arguing that the ban violates Americans’ free speech rights. The U.S. Court of Appeals for the D.C. Circuit upheld the ban earlier this month in what the groups called, at the time, a deeply misguided ruling that reads important First Amendment precedents too narrowly and gives the government sweeping power to restrict Americans’ access to foreign speech.

Read today’s brief here.

Read more about the case here. 

Lawyers on the case include Jameel Jaffer, Alex Abdo, and Xiangnong Wang from the Knight Institute. 

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the Court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.”

“Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” 

The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not.

The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here.

“The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” 

Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden.  

“The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.”

Read today’s amicus brief here. 

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

How We Got Here

Trump’s actions followed a whirlwind few days for TikTok and its 170 million American users. Last Friday, the Supreme Court unanimously upheld the Protecting Americans from Foreign Adversary Controlled Applications Act, the law that effectively bans TikTok nationwide unless it is sold by its China-based owner ByteDance. The Act effectuates the ban by prohibiting certain service providers from maintaining or distributing TikTok, backed up by steep financial penalties. By Sunday morning, once the deadline set by the Act for divestiture passed, Apple and Google had removed TikTok from their app stores, and American users who still had access to the app were greeted with a message stating that the platform was unavailable.

This set the stage for Trump to play the hero. Later that day, with TikTok effectively shut down to users in the United States, Trump took to Truth Social to announce that he would “issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect” and provide a liability shield to “any company that helped keep TikTok from going dark.” That assurance was apparently enough to convince TikTok and some of its service providers to restore service to American users, although TikTok has remained unavailable on the Apple and Google app stores. In a statement announcing the return of its service, TikTok shamelessly pandered to Trump, crediting him for bringing the app back and calling Trump’s promises a “strong stand for the First Amendment and against arbitrary censorship.”

Trump made good on his pledge on Monday. The executive order instructs his attorney general not to take any action to enforce the Act for 75 days to provide his administration “an opportunity to determine the appropriate course of action with respect to TikTok.” It promises protection from future action against entities in violation of the Act during that 75-day period and the period directly preceding his signing of the order. And it goes the extra step of directing the attorney general to issue letters to service providers “stating that there has been no violation of the statute and that there is no liability for any conduct” that occurred during those times.

The TikTok Executive Order: Rule by Decree

Trump’s executive order shows stunning disrespect for Congress, and the rule of law. It is incompatible with any reasonable reading of the Act. Covered service providers that continue to host and distribute TikTok are plainly in violation of the law. And the Act unambiguously directs the attorney general to pursue enforcement of the law’s penalties against those violating entities. Although the Act provides the president an opportunity to extend the deadline for divestiture for 90 (not 75) days, the executive order does not even claim to draw its authority from that provision. In any event, an extension under the Act is available only if there has been “significant progress” toward divestiture and specific conditions are met. It is not even clear that there is a deadline to extend anymore, as the initial period specified for divestiture has already elapsed.

The order also invokes extraordinary notions of executive power. The reason Trump gave for overriding the statute is that it “interferes with [his] ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect.” And he justified the action based on his “unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions.” This sweeping claim to executive authority  is a sign of how Trump intends to run his administration. His message is clear: L’État, c’est moi.

Trump’s Tightening Grip on the Digital Public Sphere

I strongly opposed the TikTok ban on First Amendment grounds. Trump’s order, however, is a lawless assertion of not just executive power, but personal power. Although his statements and actions have so far persuaded some of TikTok’s service providers to continue to distribute the platform in the United States, this is not a triumph for free speech.

It is hard to see Trump’s efforts to “save” TikTok as motivated by a strong commitment to the First Amendment; rather they appear to be aimed at consolidating his power over the digital public sphere. His actions seem to be having that effect. Ahead of Trump’s return to the White House, prominent tech executives rushed to ingratiate themselves with the president. Elon Musk, Jeff Bezos, Mark Zuckerberg, and Sundar Pichai were all given pride of place at Trump’s inauguration. Zuckerberg (who controls Facebook, Instagram, and WhatsApp, among other platforms), in particular, has recently cozied up to Trump: meeting with him at Mar-a-Lago, donating a million dollars to his inauguration fund, and most importantly making significant changes to Facebook’s content moderation practices that appear to cater to the president’s preferences.

Ahead of Monday’s executive order, TikTok unsurprisingly also made brazen overtures to Trump in what appeared to be a desperate attempt to avoid the legal consequences of the statute. In a video posted on the app, TikTok’s CEO Shou Zi Chew publicly heaped praise on Trump, thanking him for his commitment to keeping the platform available in the United States. TikTok helped sponsor a pre-inauguration party celebrating Trump’s most influential social media allies. And TikTok’s messages to its users during its temporary shut-down and return attributed nearly all credit for restoring the service to Trump—all of which gave off strong praise-for-the-Great-Leader energy that would make other U.S. presidents recoil. This is not just theater. It speaks to a rapid accumulation of influence by the president over some of the most important digital platforms in the country.

TikTok, perhaps once the only major social media platform not subject to Trump’s overt sway, is now firmly under the president’s thumb like none other. Trump’s executive order, rather than “saving” TikTok, has effectively granted the president vast decision-making power over the app’s future in the country. TikTok’s availability in the United States may well depend on Trump’s continued satisfaction with the platform, which means that TikTok, in all practical terms, may serve at the president’s pleasure.

The TikTok ban is and always was a bad idea. But Trump has managed to turn the ban and the Supreme Court’s decision upholding it into an opportunity to position himself as a savior of sorts, even as he tightens his hold over the digital public sphere. Given the questionable legal bases for Trump’s actions in trying to override the statute, there is no guarantee that the executive order will stick. But in many ways, the damage has already been done.

Wang notes that the ban is “wildly troubling because it allows the government to ban a popular communications platform used by millions of Americans every day, which poses a serious threat to those Americans’ First Amendment rights.” And he goes on to explain why the recent appeals court ruling upholding the ban did not adequately address the law’s profound impact on those users’ interests in expressing themselves and engaging with the people and communities they care about on the social media platform of their choice.

Watch “Breaking Down the TikTok Ban: Social Media & the First Amendment” below. 

This episode was recorded before a federal appeals court in D.C. upheld the federal ban on TikTok. To follow the Knight Institute's commentary on the case, please visit our website and follow us on social media.

Representative Ann Kuster (D-NH)

We need to take a close look at whether TikTok poses a national security risk.

Representative Richard Hudson (R-NC)

While many consider TikTok to be just another video-sharing app, in reality, TikTok has been functioning as a massive surveillance program.

Representative Cathy McMorris Rogers (R-WA)

TikTok is a weapon by the Chinese Communist Party to spy on you, manipulate what you see and exploit for future generations.

Ramya Krishnan

On April 24, 2024, President Joe Biden signed a law that could lead to the ban of the popular social media app, TikTok.

President Joe Biden

I just signed into law a national security package that was passed by the House of Representatives this weekend and by the Senate yesterday. It's going to make America safer. It's going to make the world safer.

Ramya Krishnan

ByteDance, TikTok's Chinese owner has until early next year to shutter the app or sell.

Representative Nancy Pelosi (D-CA)

This is not an attempt to ban TikTok. It's an attempt to make TikTok better.

Ramya Krishnan

The clock is ticking for TikTok. They've chosen to go to court.

Andrew Pincus

The law before this court is unprecedented and its effect would be staggering.

Ramya Krishnan

So what happens if time runs out? This is “Views on First: Speech & the Border,” at the Frontiers of Censorship and Surveillance. I'm Ramya Krishnan, a lawyer at the Knight First Amendment Institute. The Protecting Americans from Foreign Adversary Controlled Applications Act gives TikTok's owner ByteDance until January 19th, 2025 to divest from the app or see it banned. It also empowers the president to force the sale of other so-called foreign adversary controlled apps if he deems them to be a national security risk. Congress passed the act citing concerns the Chinese government could use the app to retrieve sensitive information about American users and to spread propaganda. But restricting access to foreign media is the kind of action we normally associate with authoritarian regimes, not democracies like ours. So how did we get here? Well, it goes back to the summer of 2020.

Anupam Chander

And boy, that summer had been a bad one for the president on TikTok.

Ramya Krishnan

This is Anupam Chander, a law professor at Georgetown University Law Center and an expert on the global regulation of new technologies. In the summer of 2020, Anupam says that Trump was ...

Anupam Chander

Being ridiculed left and right on TikTok. Sarah Cooper, a comedian during the pandemic, used his own words and lip-synched and just by using his words, she showed how crazy he was essentially. And so she would do these hilarious 15 second, 30 second spoofs of Trump using his own words.

Ramya Krishnan

Proposals to ban TikTok date back a little further than 2020. In 2019, the Committee for Foreign Investment in the US began investigating ByteDance's acquisition of the American app Musical.ly, spurred by fears that the app's merger with TikTok would facilitate Chinese access to US user data. The [inaudible 00:03:25] of calls to to ban TikTok began to build then, but it was in 2020 that the idea really began to pick up steam. By this point, Cooper's imitations of Trump had received millions of views and likes from TikTok users. In fact, she was so popular that in August, 2020, a Vogue Magazine headline asked, “Is Sarah Cooper the real reason Donald Trump wants to ban TikTok?” But Cooper wasn't the only TikTok user to attract Trump's ire.

Anupam Chander

The BTS army, K-pop teenagers spoiled a rally that he was having in Tulsa, Oklahoma by reserving seats at that rally causing him to crow that he had a million people who wanted to attend, but that when he actually arrived, all the seats were empty because the teens had foiled that rally.

TikTok User

Dang it! I accidentally went to the Trump website and reserved two spots at the Tulsa, Oklahoma Trump rally, and I can't go because I have to walk my gecko that day. It would be a really horrible shame if more people did this.

Ramya Krishnan

As one longtime Republican strategist and critic of Trump tweeted at the time, “The teens of America have struck a savage blow to the President.”

Anupam Chander

So TikTok was really, really super annoying to the president. And also the other thing is, look, there were other people all over Facebook and Twitter and YouTube criticizing Trump, but all those apps he had mastered, that is he gained a ton from all the other platforms. There wasn't a really vocal contingent of Trump supporters on TikTok in 2020, so there was only an upside to banning this foreign app. At the same time, he could claim that he was protecting America from foreign influence, from Chinese influence. During the 2020 campaign, I want to remind people, he literally said he was standing between Americans and their children having to learn Chinese.

Ramya Krishnan

As the Trump administration publicly mulled a ban, domestic tech companies that had resisted other forms of regulation largely stood silent. Two of the largest companies, Meta and Google were likely thrilled to see a major rival in the government's crosshairs. Meanwhile, ByteDance sensing the way the winds were blowing tried to address the administration's concerns by hiring an American CEO. But it didn't matter. In August, 2020, Trump issued a pair of executive orders that would ban TikTok from operating in the US within 90 days unless ByteDance sold the app first. Here's then-Treasury Secretary Steve Mnuchin.

Steve Mnuchin

TikTok cannot stay in the current format because it risks sending back information on a 100 million Americans.

Ramya Krishnan

But even as American companies entered the race to buy the app, TikTok went to court. Trump had issued the ban under IEIPA, the International Emergency Economic Powers Act. Although the statute gives the president broad authority to regulate international commerce when he declares a national emergency, it also contains important exceptions to guard against the risk of abuse. For example, the president can't use his powers under IEIPA to limit the cross-border exchange of information and ideas. The courts put Trump's ban on hold because it violated this exception. When Biden took office, some experts like Anupam thought that the looming threat of a TikTok ban would be a thing of the past. And for a little while that appeared to be true. Biden rescinded Trump's executive order, TikTok continued negotiating with the Committee on Foreign Investment over ways to mitigate the government's national security concerns. And though there were proposals to ban TikTok here and there in Congress, they never made it very far until 2023.

Anupam Chander

What happened was that on October 7th, 2023, there was the Hamas terror attack on Israel, a massive attack that caused many in the world to worry about what was happening in Israel. And then concerns that in November, in Congress, that American youth were turning against Israel in the wake of that October attack, and that was due to they believed TikTok, which was promoting Palestinian voices to the detriment of Israeli voices on the app. And that caused many people in Congress to say, “Hey, let's do something about this.” And many have already been trying to ban TikTok and this by all accounts, you look at the accounts in the Wall Street Journal and The Washington Post, The New York Times, they all agree on this, that the ban efforts which had been faltering were now revived.

Ramya Krishnan

While print media in the US has often described the war in Israel and Gaza in relatively sterile terms, social media has been flooded with videos showing the aftermath of Israeli airstrikes on hospitals, schools, and refugee camps. No persuasive evidence has been presented to suggest that TikTok or any other platform for that matter is rigging its algorithm in favor of pro-Palestinian speech. And TikTok has vehemently denied allegations of anti-Israel bias, but that hasn't allayed fears, especially among lawmakers that China could be manipulating Americans on the app.

Mitt Romney

Some wonder why there was such overwhelming support for us to shut down potentially TikTok or other entities of that nature.

Ramya Krishnan

This is Republican Senator Mitt Romney explaining the bipartisan consensus to ban TikTok.

Mitt Romney

If you look at the postings on TikTok and the number of mentions of Palestinians relative to other social media sites, it's overwhelmingly so among TikTok.

Ramya Krishnan

This is a startling admission and it begs the question, how real are the government's national security concerns about TikTok anyway?

Meredith Whittaker

I'm not a sparkling Gen Z tech native when it comes to TikTok.

Ramya Krishnan

This is Meredith Whittaker, the president of the Signal Foundation. Signal is an open-source messaging app that uses end-to-end encryption. It's used by journalists and activists the world over to avoid the prying eyes of governments. While Meredith isn't personally on TikTok, she's been a major advocate for ethics in tech. In 2018, after working at Google for 12 years, she helped organize a wave of employee walkouts over the company's handling of sexual harassment allegations. She and many others also demanded that Google pull out of Project Maven, a military contract that used the company's AI to analyze drone strike footage. She ultimately resigned and then later took the helm of signal in 2022. Meredith is deeply critical of the business model of TikTok and the other big tech companies.

Meredith Whittaker

I am certainly not one to push back on the fact that I think most of these social media platforms are trash. They're not a great way to form a cohesive information ecosystem.

Ramya Krishnan

But she also fears giving the executive branch a powerful new tool to bend tech platforms to its will.

Meredith Whittaker

I think if we look particularly at national security designations like foreign adversary controlled, which I believe was coined for this bill, we see a history of on the one hand, judicial deference to the executive branch. So once someone is labeled with that appellation, it is unlikely they will persevere in removing that label, and it's unlikely that the courts will listen to them. The deference to the executive is more or less the rule.

Ramya Krishnan

The executive branch has abused its power to make national security designations. Before Meredith mentions the example of the Holy Land Foundation, a Muslim charity that was shut down and designated a terrorist organization in the wake of 9/11. While the organization was prosecuted and found guilty of providing material support for terrorism, the case was controversial at the time and is now viewed by many as an effort by the Bush administration to intimidate advocates for Palestinian self-determination. The problem doesn't stop at designations however. As we've explored in earlier episodes, there is a long history of the government invoking national security as a pretext, including to restrict Americans access to information and ideas. Anupam points to the Pentagon Papers case from the 70s.

Anupam Chander

The question in that case still around the Vietnam War is whether or not The New York Times can publish the Pentagon Papers, that is this secret history of the Vietnam War that the Pentagon had produced.

Ramya Krishnan

The Washington Post was also suing for the right to publish this tranche of documents. In his dissent in the case, Justice Harry Blackmun observed that publication of the papers could result in “The death of soldiers.”

Anupam Chander

Which is a pretty striking claim, and it's to me still endlessly surprising that the Supreme Court said, “Well, even if the government says soldiers will die, we don't really take that at face value.” And historians, I think now say this was largely an effort not to protect American soldiers, but to prevent the American government from embarrassment because it had waged this really terrible war for the last decade under often false pretenses and with horrific consequences for Vietnamese and Americans and the world. So again, this effort to invoke national security to protect against the release of information to the American public, when in fact it was really to protect the government and its preferred viewpoints that should be circulated in the country.

Ramya Krishnan

TikTok's challenge to the ban is currently before a federal court of appeals in D.C. What does Anupam make of the national security claims the government has made in that case? He's less than impressed.

Anupam Chander

The Assistant Director of National Intelligence, Casey Blackburn, begins his statement, his declaration. “First, while we have no information that the PRC has done so with respect to platform operated by TikTok in the United States, there is a risk that the PRC may coerce ByteDance or TikTok to covertly manipulate the information received by millions of Americans that use the application every day through censorship or manipulation. Second, there is a risk that the PRC may coerce ByteDance or TikTok to provide the PRC access.”

Ramya Krishnan

He's referring to access to sensitive US user data. The next several paragraphs of the statement are redacted, a feature of much of the government's evidence. But Anupam says the important point is this.

Anupam Chander

Our intelligence services say they haven't done this. There is no evidence that the PRC has compelled, manipulated this app, information on the app or that it has collected information on Americans through the app. So all that redacted stuff is conjecture about what's possible in the future.

Ramya Krishnan

It's not just that the government's claims rely on speculation. It's that banning TikTok wouldn't effectively address its concerns. It won't address data collection concerns because China could still obtain sensitive data about Americans in other ways. It can hack the databases of American companies and government agencies as it's done in the past. It can collect the data from third-party websites and it can purchase data from data brokers though a recently enacted law might limit that ability. Banning TikTok also won't address Congress's concerns about content manipulation. That's because China could still run disinformation campaigns on American-owned platforms much like Russian operatives did in the 2016 election. Anupam also finds it striking that the government doesn't address Project Texas, TikTok's plan to address the government's concerns about data security and content manipulation on the app. What the plan essentially said is this.

Anupam Chander

Hey, we're going to hive off all personal data and the algorithm under a particular new company, and that company is going to have directors who are subject to the approval of the US executive. The directors are going to be people who have or are capable of having national security clearance and they're American citizens. Those people would be in charge of this new entity that controls all that data, the personal data of Americans and the recommendation algorithm. All of that would sit on Oracle infrastructure.

Ramya Krishnan

That is infrastructure that is located in the U.S. Anupam says the government hasn't addressed why those guardrails aren't sufficient. All of this wouldn't matter if this wasn't a First Amendment case, and that's essentially the argument that the government makes, that the ban is a regulation of TikTok's foreign ownership, not Americans' ability to speak or listen on the platform. And so the First Amendment has nothing to say. Here's government attorney Daniel Tenney.

Daniel Tenney

The government isn't targeting those people, isn't saying we don't want you to be able to post on this medium. We don't want you to be able to associate. That's just something that happened to them.

Ramya Krishnan

But as we've explored in the series, the Supreme Court has long recognized that the First Amendment protects the right of Americans to receive information and ideas from abroad. This is true even though foreign speakers themselves may lack First Amendment rights. In fact, in a case from the 60s called Lamont v. Postmaster General, the court held that Americans have a right to receive information from abroad even when the government considers that information to be foreign propaganda. Here's Anupam again.

Anupam Chander

Congress had a law that required postmasters across the country to retain in the post office any mail coming from communist countries, basically communist propaganda, and then write to the intended recipient asking, “Hey, Mr. Lamont, we see that you've received a copy of the Peking Review. Would you indeed like to have this delivered or would you like us to destroy it?”

Ramya Krishnan

If Lamont wanted to receive the Peking Review, he would have to tell the US Postal Service in writing. The Supreme Court held that the law violated American's right to receive information. Although the law did not deny Americans access to any material, the court believed it would exert a powerful chilling effect. How many Americans would be willing to inform the government, at the height of the Cold War no less, that they wish to receive communist propaganda from China?

A TikTok ban is considerably more onerous than the law at issue in Lamont. Not even the government argues that everything on the app is propaganda. It doesn't even argue that TikTok's algorithm has already been hijacked. Only that it could be. And of course, the ban doesn't just impose a registration requirement, it imposes, well, a ban. This isn't to say that the government is powerless to act in the face of foreign manipulation. It can make the case to the American public that China is using TikTok to spread disinformation. If it presents credible evidence of manipulation, perhaps fewer Americans will use it. It can also require the social media companies to share data with researchers and to share basic information about their content moderation practices with the public. The basic problem after all isn't TikTok per se. It's that any of these companies can hoover up our data and shape public debate through algorithms that we can't see much less understand. Meredith Whittaker from Signal agrees.

Meredith Whittaker

The issue here isn't TikTok. The issue here is a paradigm of a shared information ecosystem that shapes our shared reality that is based on mass surveillance based on a homogeneous platform infrastructure and controlled by for-profit companies. There is no world in which for-platform [inaudible 00:21:56] controlling what billions of people see and know is not a tempting political lever. But singling TikTok out particularly has a xenophobic edge and wasn't really on the agenda until deep anxiety around TikTok's role in shaping youth opinion around Gaza came to the fore.

Ramya Krishnan

In other words, if Congress is really worried about protecting Americans' privacy or countering foreign manipulation, it doesn't make any sense to focus only on TikTok. We need a more holistic approach.

Meredith Whittaker

What I'm not comfortable with there is claiming that the only threat is TikTok. The four other US-based platforms that have the same capabilities and a massive head start on TikTok in terms of gathering sensitive information in terms of the potential to manipulate. So I'm all for pushing back on the surveillance business model, pushing back on ad-based targeting as the paradigm of surveillance. Ad-based targeting is the paradigm and economic engine of our tech industry. I think these things are toxic. I think in large part they are irredeemable, so amen.

Ramya Krishnan

Unfortunately, the kinds of regulations we need, a comprehensive data privacy law, for example, and better transparency requirements seem like they're on the back burner. Meanwhile, TikTok continues to stare down the barrel of a ban. So how likely is it that the ban actually goes into effect? It's difficult to say. The D.C. Circuit heard arguments in TikTok's challenge to the ban on September, 2024. When we recorded this episode in November, a decision was still pending, but it doesn't look good. Despite the plethora of statements by legislators pointing to the true motivation for the ban, the judges who heard the case seem to credit the government's national security concerns.

Judge Sri Srinivasan

I think what they're saying is TikTok Inc. may well have First Amendment rights and does, but TikTok and TikTok Inc. continue to curate to its heart's content. But what it can't do is do that while it's owned by China because we're worried about what China does vis-à-vis TikTok Inc.

Ramya Krishnan

Whatever happens, it seems likely that the case is heading to the Supreme Court. And what about a sale? Could that be on the cards? Anupam thinks not. He says it's not as simple as it sounds.

Anupam Chander

I don't think a sale is possible. I don't think it's actually practicable.

Ramya Krishnan

For one thing, the Chinese government can block the sale or transfer of TikTok's secret source, its algorithm and has said that it will do so. Without that algorithm, the app is substantially less valuable, but as Anupam explains, that's not the only issue.

Anupam Chander

The application probably falls apart on its own if sold. Now that sounds like a crazy claim. Why wouldn't TikTok US be as wildly successful as TikTok has been in the past? The law says you cannot have any ongoing operational relationship between TikTok foreign, TikTok Global, and TikTok US?

Ramya Krishnan

In other words, structuring the company to appease regulators would be a complex feat, and even if it could be done, it would leave Americans alone on the app siloed from users from abroad. This still leaves one possible and rather surprising avenue for rescuing the app: former president and now President-elect Trump on the campaign trail. Trump seemed to have an about face on the idea of banning TikTok.

Donald Trump

For all of those that want to save TikTok in America, vote for Trump. The other side's closing it up, but I'm now a big star on TikTok.

Ramya Krishnan

Since the new ban was enacted through legislation rather than executive order, it's unclear what Trump could do about it, especially since he will assume office the day after the ban is meant to take effect. Maybe he could persuade Congress to repeal the ban. Maybe he could direct the Justice Department not to enforce it. Maybe he could perform some other fancy footwork. Then again, he could just change his mind. Again, when you consider all we've discussed so far, there's a big glaring irony to this ban that we haven't even gotten to yet.

Anupam Chander

It seems exactly the opposite of everything that the United States stands for, and it looks alarmingly and ironically much more like the Chinese internet. And so that's exactly what China did 25 years ago. We're just coming onto it 25 years late.

Ramya Krishnan

China is notorious for its Great Firewall, an internet censorship system that restricts citizens inside the country from accessing websites from outside. In fact, TikTok itself is not allowed in China. Douyin, TikTok's sister app also run by ByteDance is where you'll find Chinese users. The hypocrisy is not lost on Meredith Whittaker either. In fact, she can't help but feels some deja vu.

Meredith Whittaker

I have been very sensitive to the potential for government and corporate weaponization of this kind of power for a long time. I can zoom back 10 years, and I was involved in a number of meetings with the Obama administration, with folks from Google, with the international community where there was a full-throated defense of a global liberatory internet, a full-throated pushback of what we called the Splinter Net, which was effectively pushing back on China for implementing a great firewall that did exactly what this TikTok ban is doing in reverse, banning US-based companies and data collection.

Ramya Krishnan

And she worries that it's a slippery slope because the incentives, well, they're all in one direction.

Meredith Whittaker

Are we championing economic supremacy of a US state? To me, I don't care that much about that. Is that our goal or is our goal to reshape the tech industry because in its current form, it's toxic for us, it's toxic for them, and it is creating an incredibly dangerous source of power and control that could without very much effort be hijacked by a bad regime?

Ramya Krishnan

Consolidating power in the government, to choose what apps are safe or unsafe spells a dark future for free speech. In America. It's much more than one app at one point in time. If TikTok runs out the clock, it will no longer be available in the Apple or Android Stores come January 19th, 2025. But Anupam says that there's a much larger consequence.

Anupam Chander

It will be a black mark for the United States. It will reverberate across the world. There will be literally Americans that are VPNing to access TikTok. And so our shining city on a hill where we allow freedom and we are unafraid of what freedom entails, including access to information will now seem like a distant memory.

Ramya Krishnan

This, of course, has been a theme across the series. The idea of the border being a massive blind spot in America's free speech tradition. At first view, many of the issues we have covered this season, the attempted deportation of immigration activists, invasive device searches, social media surveillance, spyware and foreign media bans may seem disparate and hard to connect, but they're actually part of the same story from the very beginning of this country's history. The government has used the border as a justification and pretext for censorship and surveillance. New technologies have at once diminished the importance of the border and reinforced it. The internet, for instance, makes it easier than ever to share information and ideas across international lines. But as we've seen, changes in technologies also create new opportunities for speech suppression. Unfortunately, the courts have been an unreliable bulwark against these incursions, and it's not clear that that will change any time soon. But there have been bright spots, people like Adam Habib, Ravi Rugbeer.

Ravi Ragbir

If I'm afraid to do that, how can other people be willing to stand up?

Ramya Krishnan

Akram Shibly and the journalists at El Faro willing to stand up for their rights.

Carlos Dada

We are not frozen out of fear in a corner.

Ramya Krishnan

And a community of lawyers that have had their back and sometimes even succeeded in pushing back on the court's rampant border exceptionalism. As Akram Shibly observed in a previous episode, sometimes the fight takes generations.

Akram Shibly

We're just continually doing this work and going to continue to fight these issues as they come up.

Ramya Krishnan

While we conceived of this season long before the 2024 presidential election, the specter of a second Trump administration and the likelihood that it will lean more heavily on the border as a justification for surveillance and censorship makes these conversations all the more urgent. Here at the Knight First Amendment Institute, we'll continue our work to defend the freedoms of speech and the press at the frontiers of censorship and surveillance.

I am Ramya Krishnan. I'm a lawyer at the Knight First Amendment Institute. Thank you for listening to the season of “Views on First: Speech & the Border” is co-produced by Ann Marie Awad and Kushal Dev. Our executive producer is Candace White. Our engineer is Patrice Mondragon. This season you heard from my colleagues George Wang, Anna Diakun and Alex Abdo. Carrie DeCell provided creative direction for the series and is also the lead litigator on some of the cases we discussed. Fact-checking by Roni Gal-Oz, Teddy Wyche, and Kushal Dev. The art for our show was designed by Nash Weerasekera. Our theme music was composed by Greta Newman with additional music from Epidemic Sound. “Views on First” is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit our website knightcolumbia.org. That's Knight with a K, and follow us on social media.

The ruling is bad news for TikTok, its China-based parent, ByteDance, and its approximately 170 million American users. It also seriously weakens the First Amendment, and by extension our democracy, at an exceptionally perilous time.

Governments around the world are using the threat of foreign interference to justify the closure and harassment of media organizations and advocacy groups, and to impose new limitations on citizens’ access to information from abroad. Our next president has made clear he will exploit any legal authority he can to suppress what he deems to be “fake news.”

In this political landscape, the court’s opinion is an invitation to abuse. TikTok has said it will ask the Supreme Court to intervene in the case. It should.

The appellate court’s reasoning deviates from ordinary First Amendment principles in a number of ways. To begin, the judges gave near-categorical deference to the government’s claims about the risks associated with TikTok.

Of course, courts often take the government’s assertions at face value in cases implicating national security. Testament to this are decisions like Korematsu v. United States, in which the court upheld the internment of Americans of Japanese descent during World War II, and Trump v. Hawaii, in which the court upheld a law that banned travelers from seven Muslim-majority countries.

But courts have recognized the crucial importance of scrutinizing government claims more closely when First Amendment rights are at stake, given how vital free speech is to the operation of democracy. When the Supreme Court rejected the Nixon administration’s request to bar The New York Times from printing articles related to a classified history of the Vietnam War, it did so even though the administration warned that publishing would derail peace talks and expose intelligence agents.

Notably, in its opinion on Friday, the Court of Appeals for the District of Columbia Circuit did not cite the Pentagon Papers case, even though the TikTok case, like that one, involves a request to pre-emptively bar speech in the name of national security.

The judges likewise failed to interrogate the government’s claim that the ban is intended to prevent the Chinese government’s covert manipulation of American users—rather than to suppress views that members of Congress dislike. In the weeks before they voted for the TikTok law, many legislators acknowledged forthrightly that they supported it because they were offended by videos on the platform. (The Knight Institute, where one of us is the director and the other was formerly a visiting research scholar, cataloged many of these statements in an amicus brief.)

We would have expected these admissions to be a constitutional death knell. There is no principle more fundamental to the First Amendment: The government may not restrict speech simply because it dislikes its viewpoint. But the circuit court dismissed the legislators’ statements as “stray comments from the congressional proceedings”—even as the Justice Department defended the law by pointing to the dangers posed by specific categories of content, such as posts about China’s relationship to Taiwan.

All of this leads us to the most disturbing feature of the ruling, which is its audacious denial that the TikTok law constitutes censorship at all. In the court’s telling, banning TikTok actually “vindicates the values that undergird the First Amendment” by protecting Americans from possible Chinese-government influence over the editorial decisions that power TikTok’s platform. By banning TikTok, the court said, the government is ensuring a less distorted and coercive public sphere.

Even if the court is right about TikTok’s susceptibility to manipulation, it is wrong about the First Amendment and the values that undergird it. For almost a century the courts have interpreted the First Amendment to strongly disfavor paternalistic speech regulation. Except in narrow circumstances, the First Amendment prevents the government from protecting listeners from speech it views as manipulative, particularly when it comes to politics.

Just recently, the Supreme Court rejected the argument that state legislatures could override U.S. social media platforms’ content-moderation decisions to correct perceived bias against conservatives. “On the spectrum of dangers to free expression,” Justice Elena Kagan wrote for a unanimous court, “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.”