The Government vs. the ‘Modern Public Square’: The constitutional implications of the TikTok ban
By Annika Corrick
The ongoing debate over a potential TikTok ban in the United States has largely centered around concerns of data privacy and national security. Lawmakers argue that TikTok, owned by the Chinese company ByteDance, is a security risk due to its alleged ties to the Chinese government. However, beyond these concerns, a ban on TikTok raises significant constitutional questions, specifically in regards to the First Amendment’s protection of free speech. Given the platform's role as a tool for communication and activism, particularly among younger generations, restricting access to TikTok could create a dangerous pattern for digital speech rights in the United States.
The Supreme Court has repeatedly affirmed that digital spaces are protected under the First Amendment. In Reno v. ACLU (1997), the Court struck down provisions of the Communications Decency Act that sought to regulate indecent speech on the internet, recognizing that online speech is entitled to the same level of First Amendment protection as traditional forms of expression. Similarly, in Packingham v. North Carolina (2017), the Court invalidated a North Carolina law that prohibited convicted sex offenders from accessing social media platforms. Justice Kennedy, in the majority opinion, emphasized that social media platforms serve as the “modern public square,” underscoring social media’s importance in discussion and expression in today’s society. These rulings suggest that government restrictions on access to digital platforms, including TikTok, require constitutional review.
A TikTok ban would also need to be analyzed under United States v. O’Brien (1968), which established the test for content-neutral restrictions that unintentionally hinder free speech. Under O’Brien, the government must demonstrate that a regulation serves an important governmental interest and doesn’t aim to limit free expression any more than necessary. If the government’s justification for banning TikTok is national security, it would need to provide clear, compelling evidence that such an extreme measure is necessary, which is something that past First Amendment cases suggest may be difficult to prove.
Even when national security concerns are present, the government faces strict requirements before restricting speech. In Brandenburg v. Ohio (1969), the Court ruled that speech can only be banned if it incites imminent illegal action and that action is likely to occur. The TikTok ban does not appear to meet this standard, as it targets access to a platform as a whole rather than specific instances of direct incitement. Additionally, in New York Times v. United States (1971), the Court rejected prior restraint on the publication of the Pentagon Papers, reinforcing the idea that national security concerns do not automatically override First Amendment rights. If the government cannot demonstrate a direct, immediate threat posed by TikTok, its attempt to ban the platform may fail under similar constitutional scrutiny.
The case of Ashcroft v. ACLU (2004) in the Third Circuit Court of Appeals further complicates the legal justification for a TikTok ban. There, the appeals court ruled against provisions of the Child Online Protection Act (COPA) on the grounds that the government had not sufficiently proven that the law was the least restrictive means of achieving its goals. The ruling emphasized that, where free speech is concerned, the government must pursue alternatives that impose fewer restrictions. Applying this reasoning to TikTok, policymakers would need to demonstrate that there is no less restrictive alternative, like targeted data privacy regulations for instance, that could address their concerns without imposing an outright ban.
Additionally, the Ashcroft ruling emphasized the importance of parental and individual responsibility in controlling online content rather than broad government-imposed bans. This idea suggests that concerns over TikTok’s data collection practices should be addressed through stricter privacy laws or security measures, rather than outright bans that cut off an entire method of communication. Similarly, in R.A.V. v. City of St. Paul (1992), the Court struck down a ban on hate speech in public spaces for being overly broad and discriminatory, reinforcing the idea that even regulations meant to protect people from harmful content must still uphold First Amendment rights and protections. Likewise, in United States v. Stevens (2010), the Court ruled that certain restrictions on media, even those showing harmful content, infringe on First Amendment protections, and can only be upheld if absolutely necessary. These cases collectively show a past of the court deciding to not impose restrictions on the idea that it violates Free speech protections.
As mentioned previously, TikTok’s growing popularity allowed it to grow from an app used for entertainment, to a resource for political activisim, social movements, and the circulation of information. From the Black Lives Matter protests to climate advocacy, TikTok users have used the platform to spread and encourage political content and discussion. A ban on TikTok would disproportionately impact younger users, who use this app as a space for communication and civic engagement. The Court has consistently protected politically significant speech, particularly in cases like Tinker v. Des Moines (1969), which upheld students’ rights to political expression in public schools. In that case, the Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The same logic can be applied to TikTok users, who should not be deprived of their expressive rights simply because the government has speculative concerns about the app’s ownership.
Furthermore, a ban would have severe implications on digital speech as a whole. If the government can prohibit access to a major social media platform based on security concerns without concrete evidence, it could set a precedent for future restrictions on other online spaces. This could lead to increased government control over digital platforms, undermining the democratic principles that the First Amendment is meant to protect.
Banning TikTok would not only raise serious constitutional concerns in terms of free speech, but would also bring up challenges of finding a balance between free speech and maintaining national security in a time that is becoming increasingly digitized. While national security is an important governmental issue, the First Amendment upholds strict regulations before speech can be restricted, especially in instances where less restrictive alternatives exist. Looking at past cases, the Supreme Court has consistently viewed digital platforms as protected places for communication and activism. This makes an outright ban a dangerous precedent due to there likely being solutions that address security risks without infringing upon our constitutional rights.
