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Does the 1st Amendment Prevent a TikTok Ban?

TiklTok Ban graphic

TikTok has become one of the most influential social media platforms in the world. In the United States alone, the popular application has 170 Million active users. However, bipartisan legislation, recently signed into law by President Biden, may force TikTok to shut down its American operations due to national security concerns.

TikTok, as you might expect, does not take this ban lying down. Last week, the social media giant filed suit against the Justice Department alleging a violation of our 1st Amendment.

U.S. lawmakers justify their action, claiming that the Chinese government is somehow capturing date from TikTok’s Chinese parent company, ByteDance. However, there has never been any link established or direct proof offered to demonstrate that China is obtaining data on Americans from the company. Likewise, there is also no direct proof that the Chinese are influencing TikTok’s content.

There is a reason that free speech was the issue behind the very first amendment to our country’s constitution. A free press and a citizen’s right to speak his or her mind without government oppression is one of America’s most sacred freedoms. Thus, the government cannot simply allege some vague threat to national security and force a company’s closure. There must be tangible proof of demonstrable harm to America and, further, that the remedy, a ban on the platform, is necessary to prevent that harm.

A government spokesperson said that the legislative ban “addresses critical national security concerns in a manner that is consistent with the 1st Amendment,” and that the justice department looks forward to defending the law in court. Bold words, but constitutional law requires that a total ban must prove to be the least restrictive way to eliminate the threat of harm. This, obviously, is a challenging burden for the government.

There are three standards of review for this type of constitutional challenge to legislation.

The highest of those standards, strict scrutiny, is likely to be applied to the review of the TikTok ban. To meet its burden, the government must show the law furthers a compelling government interest and is narrowly tailored to achieve that interest. To this impartial observer, a total ban on a social media platform appears to be the most restrictive way to accomplish the government’s aim. In my humble opinion, the government has a long way to go to justify this shutdown.

TikTok, with the assistance of Texas-based tech giant Oracle, has spent billions on Project Texas, which creates a so-called firewall between American consumer data and TikTok’s Chinese-based parent company, ByteDance. The government wants ByteDance to divest itself of TikTok and sell it to an American concern, especially since various news reports indicate that Project Texas has not yet stopped the flow of data between the two countries.

The effort to ban TikTok is bipartisan. What the government is trying to do today, Donald Trump tried to do yesterday, via executive order in 2020. A federal judge shut that effort down, stating that there was no evidence that the popular app posed a security risk to America.

Under Chinese law, the communist government could, at any time, require ByteDance to turn over data, including information on its American customers. The company argues that it has never been asked to do so—there is no current evidence that China has sought to acquire such information. Apparently, the threat that China might someday wish to acquire the information or that it has the right to capture the data, is enough to create bipartisan support for a ban.  

This is shaping up to be an interesting case. A total ban is a nuclear option, an extraordinary measure that must be accompanied by extraordinary proof of danger to America. Shutting down an entire social media platform the size of TikTok would require no less under the 1st Amendment.

Will Project Texas ultimately be enough to defeat a ban? Does the DOJ have additional bombshell evidence that has not been made public? We shall see.

Ant-Semite Next Door Cover

Please check out Mark Bello’s latest book, "The Anti-Semite Next Door," an exploration of antisemitism in the context of today's political environment.

Bello Books

It's the latest in Bello's ripped-from-the-headlines legal thrillers, all available online at Amazon and other major online booksellers. He has quite the hero in Attorney Zachary Blake, who fights for justice on all fronts. His previous books are Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, Betrayal High, Supreme Betrayal, Betrayal at the Border, You Have the Right to Remain Silent, and The Final Steps – A Harbor Springs Cozy Legal Mystery. He’s also written a wonderful children’s book about bullying, “Happy Jack, Sad Jack,” and he's just released "Love Hate Law," a new legal romance novel. For more info, just check


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