TikTok's free speech lawsuit has a logic problem

By Stephen L Carter

My great uncle, a brilliant scholar ultimately imprisoned during the McCarthy Era for his politics, first came to the attention of the Federal Bureau of Investigation because agents couldn’t find his printing press. In 1941, Uncle Alphaeus was printing flyers urging Negro citizens to register to vote. According to his FBI file, the Bureau wanted to figure out where the subversive literature was being produced so that they might shut down the “underground” printing operation.

This strange story comes to mind in the wake of the lawsuit filed by ByteDance, owner of TikTok, aimed at preventing enforcement of the unhappily titled Protecting Americans From Foreign Adversary Controlled Applications Act. The Act says unless the Chinese parent company finds a US buyer for TikTok, the app will be banned from these shores. (Literally; the ban applies “within the land or maritime borders” of the United States.)

Like most legislation driven by moral panic, the new law — let’s call it PAFFACAA, because legislation as silly as this deserves a silly acronym — is, well, terrible. The complaint argues that the sort of divestment the statute demands is technologically difficult; whether or not that’s true, nobody imagines that the company will sell its algorithms and source code to a US buyer, or that the government of China would allow it to do so. Moreover, PAFFACAA singles out TikTok for special treatment; other apps that might fall within the statute are granted procedural protections TikTok is denied.

The more intriguing claim is that PAFFACAA is an unconstitutional burden on the First Amendment rights of its 170 million US users (more than half the population), who engage in protected speech, both when they choose what to post and when they choose what to view. To punish them would be to violate their rights.

But it’s less obvious that banning an app violates the rights of users. A regulation that is content-neutral will generally be upheld if it leaves alternative means of expression available and burdens no more speech than is necessary to further the government’s interest. Other apps exist, and if TikTok goes, more will spring up.

Consider the mimeograph machine, once the heart of the production of everything from handbills to classroom assignments. Had the devices been banned on the ground that the drying process produced trace amounts of airborne methanol, lots of people would have lost their preferred means of sending messages, but their free speech rights wouldn’t have been violated as long as they could still use, say, photocopiers.

Which brings us back to my great-uncle’s printing press.

The federal government was clearly violating my great-uncle’s right of free speech because the hunt for his printing press rested on the content of the flyers he was producing. The voter registration flyers were bad enough. But according to Alphaeus’s FBI file, there was worse: He was also printing employment applications, “so that ‘pressure’ can be brought upon the Federal government to require the hiring of these negroes.” In short, the FBI’s goals involved putting a stop to speech the government didn’t like.

To the extent that the TikTok legislation can be said to have a motive, the problem isn’t the speech of the company or the users; it’s the risk of misuse of the data the company collects on its users. The analogy of the internet to the printing press is often criticized, not without reason, but let’s suppose it fits. In that case, TikTok would be like a print shop whose owner sends information on customers to an “adversary” overseas.

In time of war, I suspect the courts would find such targeting appropriate. In time of peace, the case is shaky. But even were the analogy spot-on, the statute doesn’t rest on the notion that TikTok is delivering user data to China, only that, in theory, it could. That fear might (I emphasize might) provide a sufficient ground to ban all providers and apps operating in the US from exporting data on their users to China. But fear of what might happen is a weak ground for singling out a particular company for punitive measures.

None of this is to say that supporters of the legislation make no good points. It's true that Congress has often adopted limits on foreign ownership of US firms. And maybe, as supporters insist, apps that are available in the US but keep the source code and algorithms in China are dangerous to national security.

But even if we were to accept those arguments, they would provide support only for a law that makes clear — without references to TikTok and ByteDance — what corporate conduct is being banned and what procedural steps must be taken to prove it. Instead, PAFFACAA gives us an explicit ban of a specific app.

I’m skeptical that those flaws will be sufficient to persuade a court to strike PAFFACAA down. But if there is indeed a serious crisis, then we deserve serious legislation, authored in a serious way by serious legislators. As so often, what we’ve been given is a good deal less. Democracy is the worse for it.