TikTok Ban Could Lead to a Supreme Court Clash: Determining the Next Frontier in First Amendment Jurisprudence

Harrison Platt – TikTok is currently a wholly owned subsidiary of the Chinese technology firm ByteDance Ltd. Like other social media outlets, including Facebook and Instagram, TikTok collects information on how users consume its content. The platform collects data on users’ device-type, location and IP address, search history, and messaging content within the app. The aggregation of this data is used to calibrate the application’s algorithm for its main feed, which shows each TikTok user different videos based on their prior tendencies, preferences, and searches.

This practice of collecting data is referred to as data harvesting. While the practice is nothing new, the political strife between the United States and China has resulted in growing concerns over whether the information collected on U.S. TikTok users is accessible by China.

In 2017, China implemented a law that required Chinese based companies to give the government any personal data relevant to the country’s national security. While there is no evidence that TikTok has turned over any data to the Chinese Government in accordance with the 2017 law, fears have developed over the concern that China has used, or will use, the law to collect mass amounts of data on the excess of 150 Million U.S. TikTok users.

In response to these growing concerns, the U.S. federal government, along with multiple state and foreign governments, have banned TikTok on government-provided phones. Montana elected to take a step further on April 14, 2023. In a 54 to 43 vote, the Montana House of Representatives passed S.B. 419 to Governor Greg Gianforte’s desk for final approval. S.B. 419 is a Republican-led bill that would outright ban app stores from allowing users to download TikTok within the state of Montana. The bill was first passed through the state’s Senate in March by a 30 to 20 vote, and now only requires the Governor’s stamp of approval before becoming state law. If signed by the Governor, the restrictive law will be the first of its kind in the U.S. While users who previously downloaded TikTok and still have it on their devices will be able to access the platform, the application will not receive further updates on individuals’ phones within the State of Montana. The bill will primarily affect individuals who are looking to download the app.

The bill’s purported purpose is to prevent China from: (1) gathering significant information on its users, (2) accessing user data without consent, and (3) promoting dangerous content—such as cooking chicken in NyQuil, or licking toilet seats.

In response, TikTok spokespersons have threatened litigation if the bill is passed, arguing that it is an unconstitutional restriction and a censorship of American voices. Furthermore, TikTok proclaimed that they “will continue to fight for TikTok users and creators in Montana whose livelihood and First Amendment rights are threatened by this egregious government overreach.”

Governor Gianforte is expected to sign the bill; he previously stated that TikTok posed a “significant threat” to state security and data privacy when he banned TikTok on state government devices last year. If signed into law, the bill will prohibit app stores from allowing Montana residents to download TikTok starting January 1, 2024. Furthermore, a $10,000 fine will be issued on a per day basis to any app that “offers the ability” to access or download TikTok. However, questions arise as to how app stores will be monitored to ensure the outright ban of TikTok. Furthermore, TikTok claims that Montana does not have a “feasible plan” to enforce the ban.

If the bill becomes law and TikTok decides to pursue litigation, the “next frontier in First Amendment jurisprudence” could come to center stage—potentially making its way to the U.S. Supreme Court. The Court would be faced with answering whether an outright ban on using a social media application would be considered a violation of U.S. citizens’ freedom of speech, and if so, if there is a compelling state or governmental interest that allows for the government to restrict such speech.

Periodically, the Supreme Court has examined whether the government is able to restrict speech to further to a compelling interest in national security under the strict scrutiny standard. Under the strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling governmental interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the government. In Near v. Minnesota (1931), the Supreme Court established a general rule against prior restraints on expression. The Court held that the U.S. government is permitted to shut down a newspaper if it publishes military secrets, but the government must first provide proof that national security interests are at play. Therefore, the government must prove that there are present national security risks as opposed to simply restricting speech and claiming that national security is at play without proof of its implication. The Near Court established that national security is a governmental interest that can justify restrictions on First Amendment rights.

Montana’s potential ban would differ from any case the Supreme Court has heard regarding the First Amendment. The U.S. would need to prove that TikTok is providing China with U.S. citizens’ data and that the Chinese government’s possession of such data poses a real national security threat. This will be a heavy burden for the U.S. to prove.

If passed into law, it will be interesting to see whether TikTok decides to pursue litigation and what the result of such a suit would be. On one hand, if courts decide that the U.S. government can restrict use of a social media application entirely, there is potential for a slippery slope on further restrictions on citizens’ freedom of speech in the future. On the other hand, if the Court finds that the bill is a violation of American’s First Amendment rights, how will the U.S. prevent the dangers of data collection from China through TikTok or other countries in the future who use social media platforms to harvest data from American citizens? We will have to wait and see, but these questions very well could be contemplated at the Supreme Court level in the coming years.

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