First Amendment, Law, National Security, Politics,

The TikTok Ban/Bill and The First Amendment

The TikTok Ban/Bill and The First Amendment

R Tamara de Silva

Printers are educated in the Belief, that when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter: Hence they chearfully serve all contending Writers that pay them well, without regarding on which side they are of the Question in Dispute.[1]

Benjamin Frankin


The House of Representatives on Wednesday passed bill, H.R.7521 – entitled, Protecting Americans from Foreign Adversary Controlled Applications Act that requires TikTok to either divest from its owner ByteDance or face a ban in the United States within six months. H.R. 7521 (“TikTok bill”).[2]  It is ostensibly aimed at prohibiting the distribution and maintenance of “foreign adversary-controlled applications” within the United States.  But it has several provisions that could potentially be abused by the government due to its broad scope.  It is also violative of the First Amendment.

It has an overreaching definition of “foreign adversary.” The definition of “foreign adversary country” relies on a list specified in a separate section of the U.S. Code at (10 U.S.C. 4872(d)(2)).[3] This could allow the government to expand the list of countries considered adversaries without amending this legislation thereby increasing the scope of the TikTok bill without limitation.

In practical terms, this also invites the possibility of arbitrariness as to what countries’ actions are considered worthy of reprobation and what are not. For example, our foreign policy may not take umbrage with the same actions if performed by an ally when performed by another country-and this could change depending on which political party is in power and which side we are on at the time.

As foreign policy conflicts shift or expand in a region, the list of countries deemed adversarial could easily expand. What if a country refused to impose sanctions against a country, we decided was adversarial because doing so would harm its own domestic economy and citizens?  There are many countries that refused to impose sanctions on Russia after Ukraine invasion out of concern for their domestic populations- countries like India, China, Saudi Arabia and Brazil, et al.

Is the use of American data a valid reason? 

It is not just TikTok- FB, Amazon, and Google- all of the largest tech companies scrape your data and it goes into among other things, building large language models like LLaMa and Llama2.  This has been going on for years and on an enormous scale.

In fact, Facebook provided access to Chinese device makers, along with other manufacturers – including Amazon, Apple, BlackBerry, and Samsung – whose data-sharing agreements were disclosed in a New York Times report on Sunday, June 3rd, 2018.[4]

The data gathered by social media companies and behemoths like Amazon is available for purchase-your data.[5]  It is not just TikTok.   If sharing data is the main concern, then enacting a privacy and data regime like the EU’s General Data Protection Regulation (GDPR) may be a more effective solution.

There has also not been any proof that TikTok has ever sold American user data to China offered by the government or mentioned by the government in the House proceedings or otherwise.  TikTok denies that it has ever sold user data to China.[6]

Control by a foreign adversary

The criteria in the TikTok bill for determining if a business is controlled by a foreign adversary is subjective: The criteria for determining if an entity is “controlled by a foreign adversary” (e.g., 20% foreign ownership stake) may be subjective and could be applied broadly to target companies with even minimal foreign ties.

TikTok’s parent company ByteDance was founded by Chinese entrepreneurs.   It is owned by its founder, Chinese National, Zhang Yiming; with 60% owned by global institutional investors including, Blackrock, General Atlantic, KKR, Caryle Group, Softbank Group, General Atlantic and Susquehanna International Group; and the remaining percentage owned by TikTok employees (including 7,000 Americans).  TikTok denies that it is owned or controlled by any government or state actor.[7]

TikTok is headquartered in Los Angelos and Singapore.

1% of an affiliate of ByteDance, Douyin Information Service Co., Ltd, is owned by an entity affiliated with the Chinese government.  This is apparently required by law for a company that provides an information or news platform in China.  TikTok does not operate in China and is a separate entity.[8]

The CEO of TikTok Shou Chew, was born in Singapore and went to Harvard Business School.[9]

All American user data as of June 2022 was moved by TikTok to Oracle servers in the United States.[10]

China has already stated that since ByteDance was founded in China, it will not permit the sale of intellectual property developed in China.[11]  This means that the TikTok bill is essentially a ban because it contemplates a divestiture that is unlikely to ever happen.

Expansive definition of “covered company

The definition of a “covered company” includes any app/website with over 1 million monthly users and basic social networking features, potentially capturing a wide range of services beyond intended targets.  While the target of the TikTok bill is TikTok, the term covered company is broad enough to capture other companies such as X and Rumble, etc.

Unchecked presidential authority

The President has sole authority to designate any “covered company” as a “foreign adversary-controlled application” if deemed a national security threat, without clear checks or appeal processes.  Given that President Trump wanted to ban TikTok and then changed his mind,and is now opposed to the ban -and that the current bill originated in the Biden White House, this leaves the fate of industries, and the Americans and American businesses that rely on them, at the whim and fancy of the Executive.

What could go wrong? 

In Murthy v. Missouri (formerly titled Missouri v. Biden) a federal appeals court determined that White House officials and other executive branch authorities transgressed First Amendment boundaries by strong-arming tech companies into silencing dissenting voices.  The complaint accused the administration of prodding – overtly through the bully pulpit and covertly behind the scenes – major social media platforms like Facebook and Twitter to censor, demote, remove or outright ban users and viewpoints running counter to official positions on controversial matters such as COVID-19, claims of election irregularities, and the Hunter Biden laptop saga.  The Biden administration denied there was coercion, merely communication.  The court injunction prevents the Biden administration from persisting with such efforts to influence private moderation of online discourse.   The Supreme Court struck down the appellate court’s injunction and is set to hear arguments on the case on March 18th.

The urge to coerce social networks based on user-generated content is not unique to President Biden’s team. A cabal of Republican officials – including former President Trump among them bear guilt for comparable conduct. The tendency to interfere with free digital expression transcends partisan allegiances when political stakes are sufficiently high.

What is taken by almost an unanimity of the press and mainstream media as true can be found to have been in the most venial terms, overstated or questionable.  Remember Russiagate?


Journalist Matt Taibbi revealed that Hamilton 68, a source cited for claims of Russian disinformation during Trump’s presidency, was a disinformation operation itself.[12]  Created by former U.S. intelligence officials. Media outlets, the public, and Congress were misled by the “Russiagate” narrative.[13]

Hamilton 68 was portrayed as impartially tracking Russian influence. Taibbi’s investigation exposed its spread propaganda and manufactured a crisis.[14] He utilized documents and firsthand accounts to undermine its credibility showing that the tool was a product of potential intelligence community machinations and motivations. It was not an authoritative dashboard as widely depicted.

Legacy media faced little scrutiny for amplifying dubious Russiagate claims without adequate, or in many cases, any verification. Taibbi’s exposé showed how major institutions shaped discourse based on a misleading intelligence operation with the mainstream media’s full complicity-whether knowing or not.

What becomes so readily accepted into the mainstream media narrative and conventional wisdom is difficult to challenge without the existence of investigative journalists, whistleblowers, and independent news sources.  Social media platforms have become independent news sources for millions of people around the world -a way to hear and see the news first hand from strangers who are witnessing it.


“Twittergate” exposed by Elon Musk and Matt Taibi uncovered internal Twitter communications showing Twitter censored voices at the behest of the government and the Democratic Party. Twittergate revealed the suppression of views conflicting with partisan political aims.  It spotlighted concerns over platform censorship and state overreach into online speech.

Elon Musk stated that he hoped X would become citizen journalism.[15]  To some extent TikTok has become that for a generation of Americans and young people around the world, who unlike their grandparents and parents, do not watch mainstream media news.   Like X, TikTok allows anyone to capture and share real-time events, as they happen.  This poses a threat to any official government narrative used to garner support for a new war or foreign policy initiative especially if that narrative is curated or false.

This is not to say that government expressing an opinion to social media platforms violates the First Amendment.  It is the government’s role to look after the general welfare and security of the country and that means looking for things like terrorism, child exploitation or human trafficking on social media apps.  However, to exercise its great power of coercion over matters about which there can be another side, or shutter inconvenient opinions, may go towards being violative of the First Amendment.

National Security

Does invoking national security guarantee an end run around the First Amendment?  You cannot be faulted for thinking so when looking back.  While national security is a valid concern, the vague language, expansive definitions, and concentration of powers, stated in the TikTok bill create opportunities for overreach, suppression of competition, and infringement on digital rights if this legislation in its current form.

Governments have historically not liked criticism and have felt threatened enough by opposing viewpoints to take action. Take the example of Galileo who was tried for heresy and placed under house arrest for remainder of his life because he expressed a viewpoint opposed to the politically powerful Roman Catholic Church.

Closer to home, we have used the idea of national security long before the Patriot Act, to stifle dissenting speech. The Sedition Act of 1798 in the United States exemplified the government’s intolerance towards dissenting views, particularly directed at criticism of the Federalist Party in power. This Act criminalized speech considered false, scandalous, or malicious against the government or its officials, leading to the arrest and prosecution of journalists and political opponents who dared to voice opposition. It reflected a time when the government sought to suppress dissent by legal means.

Even at the time, critics argued that the Sedition Act violated fundamental principles of free expression enshrined in the First Amendment, sparking a debate over the balance between national security and civil liberties. The Sedition Act’s legacy serves as a reminder of the dangers of government overreach and the importance of safeguarding freedom of speech, even in times of perceived crisis.

Later the government enacted the Espionage Act of 1917 and Sedition Act of 1918 intolerant towards dissenting views during World War I. Although ostensibly aimed at preventing espionage and sabotage, these laws were used to suppress anti-war sentiment, socialist agitation, and criticism of the government. Individuals expressing dissenting opinions faced arrest and prosecution, highlighting the government’s efforts to silence opposition during times of conflict.

The Espionage Act and Sedition Act represented a departure from traditional notions of free speech.  It raised concerns about the erosion of civil liberties in the name of national security. These acts underscored the tension between protecting the nation and upholding constitutional rights, prompting debates over the limits of government authority in times of crisis.  The freedom of speech of Americans becomes decidedly more fragile in times of political crisis when the government does not want to withstand criticism.

TikTok reaches 170 million American users some of whom spend up to 90 minutes a day.  It reaches 1 billion users worldwide.  This is a wildly popular forum.


The support for banning TikTok is more than it seems because it can spread to other platforms like X or Rumble, which are also used by younger generations of people around the world for news.  The cynical answer would be to characterize all that information sharing and news as “fake” because it is not reported by CNN, FOX or NPR.  But to believe this, would be to have historical amnesia of all the times, MSM news sources have in unison beat the war drums for an invasion, or the existence of weapons of mass destruction, only years later to have the truth come out differently from what they presented.

The power of the MSM media is not just what they report as the truth, but just as much as what they decide to not report or leave out.  Such curation is not done in any unified manner by millions of witnesses at the scene with smartphones.  The inability of a government to control the narrative about a war or a foreign policy foray is seriously threatened.  Does this rise to the level of a national security threat or is it a grave political risk?



Protecting Americans from themselves.

On the floor of the House of Representatives, one of the arguments used was that banning TikTok would protect Americans from fake information.  But all too often in the recent past, any information or viewpoint that is not squarely within the narrative of the mainstream media or government narrative has been labeled “fake.”

This is profoundly unamerican.

Many Enlightenment thinkers from John Locke to Voltaire and Baron de Montesquieu influenced the principles underlying the First Amendment to the United States Constitution.  Their hand is seen in the foundation and forming of America around the Constitution and Bill of Rights where the balance the power of the national government sits against that of the individual’s liberties and the power of state.    And at the center of this balance is the First Amendment.

The First Amendment was not just an idea, it was the way to protect opinions that may be dissenting, or in the minority, so as to oppose tyranny and to further intellectual discourse.  This country was founded on the idea that you could dissent and have viewpoints opposed to any official narrative.  That is the American way-at least the way it was intended to be at its conception.

John Stuart Mill is credited with the marketplace of ideas concept – equating free thought to market competition – which is wrote about in 1859 in his work “On Liberty.” In Chapter 2, Mill argues against censorship, favoring the free flow of ideas. He asserts that no single person or idea alone embodies truth or its antithesis. Left unchallenged, truth may devolve to dogma. Mill believed that truth emerges best from ideas’ open competition separating fact from falsehood.

This marketplace theory gained legal relevance via Justice Oliver Wendell Holmes Jr.’s 1919 dissent in Abrams v. United States. Holmes disagreed with the majority upholding an anarchist’s Espionage Act conviction for anti-war speech. He stated: “…the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market…” Introducing the marketplace metaphor as a guiding principle for free expression jurisprudence. Justice Holmes framed unfettered idea exchange and competition, without government interference, as vital for societal truth-seeking and understandings’ advancement.

TikToK and other online forums do this for an increasingly large number of Americans, all while the viewership of mainstream media news declines.  Justice Holmes was not wrong to believe that Americans are capable of discerning the truth when presented with all sides of a matter.

The patronizing idea of a politician or group of politicians, beholden to vested interests and lobbyist paymasters having to protect Americans from what they should and should not believe is a farcical substitute for the First Amendment.

Other issues

The legislation faces criticism for several reasons.  The criteria for a “qualified divestiture” to exempt an app are vague and determined through an opaque interagency process, potentially allowing arbitrary application.  Additionally, the Attorney General’s broad enforcement powers raise concerns about selective enforcement or overreach, as they have wide latitude to investigate and impose substantial civil penalties. Mandating complete user data transfers before a ban could pose significant challenges, as it may be impractical for many apps.  This would effectively block their operation regardless of security concerns. Furthermore, the severability clause allows the overall law to remain in effect even if specific provisions are struck down, perpetuating potential abuse.

Another obvious issue is that it is unprecedented to force a company to sell its ownership or be banned.  This also belies the government having a neutral stance on the marketplace that TikTok is in.  Harming TikTok would benefit Facebook’s competing Instagram.  Is the government getting into the business of picking winners and losers in an industry- and will such action withstand judicial review?


The main argument against this bill is its breath.  Like so many laws that have been passed to whittle away at the precious liberties that define America, if you cannot imagine these laws being used against something you hold dear, then you have no business supporting them against something you do not like or cannot identify with.  That is how court decisions and laws that chip away at American civil liberties should be looked at it.

History is replete with governments and dictators from Stalin to Goebbels who determined what was and what was not acceptable thought.  In the year 2021, Nigeria’s government implemented a widespread prohibition on Twitter’s usage within the country, alleging that the platform facilitated the spread of “misinformation and fake news” which posed potential risks to national stability. This moves elicited criticism from the State Department, which expressed disapproval of Nigeria’s actions, asserting that limiting the ability of Nigerians to report, gather, and share opinions and information contradicts the foundational principles of democracy.

India and Canada banned TikTok.  But America is neither one of these countries-not even, as one may cynically think, in the critical months before an election where a younger generation is sharing ideas very much not inside the four corners of the official government narrative on a variety of topics that will affect the outcome of the election like Ukraine funding, the crisis in Gaza and more.

The more relevant question to this bill would be the answer to cui bono? Has Congress considered the wishes of 170 million of its constituents?  Why single out TikTok?   Why now? November’s general election is a powerful reason for all the usual suspects rushing the bill through.  But this is not worth the permanent abridgement of every American’s First Amendment rights.


R Tamara de Silva

Chicago, Illinois

March 15, 2024

[1] Apology for Printers, 10 June 1731
[3]  Covered nation.— The term “covered nation” currently means— (A) the Democratic People’s Republic of North Korea; (B) the People’s Republic of China; (C) the Russian Federation; and (D) the Islamic Republic of Iran.
[4] The social media giant granted these device partners deep access to user data, raising significant privacy concerns despite Facebook’s public assurances of user control over what personal information gets shared with outside parties. While such data partnerships are relatively common within the tech industry, Facebook’s specific arrangements sparked widespread scrutiny and criticism due to both the sweeping degree of access afforded to device makers, as well as the explicit inclusion of Chinese firms like Huawei
[9] Senator Tom Cotton, who grilled the TikTok’s CEO at a Congressional hearing seemed not to know where Singapore was or perhaps just thought the TikTok CEO looked close enough to a Chinese person.



Chicago, Illinois

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