![]() Major vulnerabilities left unpatched would leave TikTok users susceptible to a variety of attackers, up to and including the Chinese government. However, an inability to get updates-as a result of a ban-would create a security nightmare. Of course, it would be up to Apple and Google to challenge a purported distribution ban on their app store.Īs a practical matter, an app store ban would not be particularly effective, as close to 100 million people in the U.S. Just as bookstores have a right to sell books protected by the First Amendment, so too do app stores have a right to distribute protected software. As courts have held, code is speech, and the Supreme Court has recognized that software is a protected means of expression (addressing age warnings for video games). Banning App Stores From Distributing TikTok Also Raises Serious First Amendment Concernsīanning app stores from distributing TikTok would raise the First Amendment rights of the app stores to distribute software. The vast majority of TikTok videos are not in any way related to national security, nor are their posters in substantially more danger of Chinese government spying than the users of other Chinese-owned technologies. Moreover, if the Trump Administration's true motives are based on perceived anti-Trump content on TikTok, as some have contended, the ban would be an impermissible restriction based on content and viewpoint, subjecting the ban to more constitutional scrutiny, which it could not survive.Įven if the courts reviewed the ban as just a content-neutral restriction on the manner of speech, a complete TikTok ban is overly broad and not narrowly tailored to achieve the government’s national security purpose. As the Supreme Court has recognized, to “foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Noting that the Court had previously struck down a law prohibiting protected speech in just one venue (the Los Angeles International Airport), the Court explained: “the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.” While some may not consider TikTok integral to their own lives, these good-bye videos show how much TikTok means to its users. ![]() Courts will generally not uphold a categorical ban on speech. ![]() Millions of users post protected speech to TikTok every day, choosing the app over other options for its features or for its audience. Banning Americans From Using TikTok Would Violate the First Amendmentīanning Americans from using the TikTok app would infringe the First Amendment rights of those users to express themselves online. Any way you slice it, an effective ban of the scope suggested cannot be squared with the Constitution. Rather, the President has said broadly, “we’re banning them from the United States ,” or most recently, “it's going to be out of business in the United States.” This could mean a ban on using the app, or perhaps a ban on distributing TikTok in app stores, or maybe something else. While there is significant cause for concern with TikTok’s security, privacy, and its relationship with the Chinese government, we should resist a governmental power to ban a popular means of communication and expression.Īs is too often the case with government pronouncements, the Trump administration has proposed a ban without specifying what the ban would actually be or what authority allows for it. Censorship of both speech and social media applications, after all, is one of the hallmarks of the Chinese Internet strategy. It is ironic that, while purporting to protect America from China’s authoritarian government, President Trump is threatening to ban the TikTok app. ![]()
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