Of all the arguments TikTok owner ByteDance could have made to retain ownership while continuing to operate in the US, freedom of speech is perhaps the weakest and is unlikely to win if it makes its case before the US Supreme Court on January 10.
Look, I’m no legal expert, but even I know that one of the metrics for measuring whether you’re infringing on speech in some way is whether there are limited opportunities for someone to share similar views.
TikTok is not unique. I love it and use it myself (and Ny Breaking is very busy with it), but there are similar platforms, including Instagram Reels and YouTube Shorts (not to mention BlueSky, X, and Threads). They fall far short of TikTok’s creative capabilities, but the results are essentially the same: delivering your crisp vertical social videos to a broad, public audience.
This is what the First Amendment promises:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or curtailing freedom of expression or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It’s not a lot of text and is open to interpretation, but I’m having a hard time seeing how banning the TikTok app in the US (unless ByDance sells to a US entity) meets any of these benchmarks. Certainly, losing TikTok would close off an avenue for expression. But social media content is like water; when you shut off one tap, it moves freely to the next available tap.
Not the right dance move
TikTok claiming it infringes on free speech is like me claiming that Twitter (now X) shutting down Vine was a violation of the First Amendment. Yes, it was devastating to lose the ability to create and share six-second videos on the platform, but I soon found myself using other tools to create animated unboxings. Eventually I discovered TikTok, where I post an even greater variety of short videos.
I don’t claim to agree with the Protecting Americans from the Foreign Adversary Controlled Applications Act and the inclusion of TikTok as a threat to national security. I believe the work TikTok and its parent company ByteDance have done in recent years – moving data to the US, hiring US staff to run it, and increasing transparency – has allayed most of these concerns. I don’t trust the Chinese government, but have long believed that just having a popular app like TikTok in the US is such a point of pride that China has no interest in undermining it by trying to overtake TikTok use as a large-scale spying tool.
You might consider my views pollyannish, but you might agree that this law and the inclusion of TikTok are government overreach. Since when does the US government make sweeping statements about private companies run on US soil?
No cold
I understand that the climate is changing and that the US government has taken potential action against a wide range of companies operating in or through hostile nation states (mostly but not exclusively in China). I’m not sure this is the right approach either. I’m certainly not a fan of DJI drones potentially being banned in the US.
In the case of TikTok, however, the US government is ignoring the will of its own people. Back in August, Support for the ban was less than a third among Pew Research respondents. That was a decline from earlier this year, and it goes without saying that support has declined even further.
Unfortunately, most lawmakers and people at the highest levels of government have their fingers figuratively in their ears and are working hard to drown out the growing support for a TikTok pardon.
If, as I fully expect, TikTok loses its argument for upholding the ban, the clock will start ticking on his departure. There will be a nine-day gap between the expected SCOTUS decision and the inauguration of the next president of the United States, Donald Trump, a returning executive who may play the role of unlikely savior.
While Trump has debated this topic more than a little, he recently expressed some affection for the platform and even entertained TikTok CEO Shou Chew on his estate Mara Largo.
That could be seen as a positive sign. Trump could write an executive order to delay the ban indefinitely, while still maintaining pressure on ByteDance to slowly complete a divestiture.
It could happen. Anything can happen. If none of this makes sense, maybe the following will help.
An edict from the US government
With apologies to Clement Moore:
‘It was the twilight of TikTok and throughout the house,
We stopped swiping to think and grumble
TikTokers were on the move, all ready to strike
Its fate hung in the balance for nine judges to rule
The platform was on the verge of a ban
SCOTUS will listen and consider whether making speeches feels full
Arguments were nested in notes that we advocated
But the chance of success is less than death
Influencers in cosplay and filters that hit
When all that was heard was a pre-presidential joke
A man in a suit, his blond hair flowing
He held his hand to his heart and said
I have a warm feeling about that
This man appeared at the top of the White House
And he grinned a little too hard because
It’s up to him, I’m afraid