Mindplex Podcast Episode 31: The Unconstitutionality of the TikTok Ban
Is the recently passed “TikTok ban” legislation rooted in genuine security concerns or corporate interests and censorship?
Join us this week with David Greene, the EFF’s Senior Staff Attorney and Civil Liberties Director — and co-hosts Lisa Rein and Desdemona Robot.
We discuss the recent “TikTok ban” by the U.S. Congress and what it means for TikTok users in the short and long term.
We answer audience questions and help Desdemona Robot break in her latest interactive dialogue systems.
Watch the show here.
Episode 28: The Unconstitutionality of the Tiktok Ban
In this episode, we delve into the complex and controversial situation surrounding the future of TikTok in the United States and why it’s likely the recent ban passed by the U.S. Congress is unconstitutional.
With approximately 50% of the U.S. population using it every day, TikTok has become a significant player in the social media landscape, influencing not only individual users but also impacting entire economies and serving as a primary news source for millions, especially younger demographics.
Legislative action supported by a vast majority in Congress has placed TikTok’s future in jeopardy. The new legislation requires ByteDance, TikTok’s Chinese parent company, to sell itself to an approved American entity in order to prevent its removal from U.S. app stores, sparking a legal battle with TikTok filing a lawsuit in order to push back against the law and prevent its implementation.
To defend against TikTok’s lawsuit, the DOJ must show Congress had compelling reasons that justify the ban’s burdens on free speech. As David Greene explained to the Wall Street Journal, “They’re going to have to show this is a real & actual security concern, not a hypothetical.”
Besides the core issue of whether the looming ban is the result of tech giants vying for market dominance or an actual and legitimate national security concern, there’s also the concern that any kind of TikTok ban clearly violates the First Amendment by censoring the speech of its users.
“It’s very difficult under the First Amendment for the government to restrict content,” David Greene told PBS Newshour. “So, if the goal of this bill is to say, we don’t like the content you’re getting, that’s a very difficult thing for the government to do.”
Although some alarmists are painting TikTok as a tool for Chinese surveillance and propaganda, emphasizing national security risks, others, such as Wired’s global editorial director, Katie Drummond, view the legislative action as an excessive and disproportionate overreach, driven by corporate interests looking to stifle a foreign competitor offering a superior product. She argues that the claim of TikTok being a national security threat is unfounded and reflects a lack of a comprehensive regulatory approach that fails to treat all social media platforms equally in terms of oversight and governance.
The EFF’s David Greene will help us make sense of it all and tell us exactly who and what will be affected in the coming months.
We will answer these questions and more:
- Why the ban could be a violation of the First Amendment?
- Is TikTok really a security threat?
- What does the newly passed legislation in the U.S. actually do?
- How will the average TikTok user be affected by the ban?
About David Greene
David Greene is the Senior Staff Attorney and Civil Liberties Director, for the Electronic Frontier Foundation (EFF). He has significant experience litigating First Amendment issues in state and federal trial and appellate courts and is also an adjunct professor at the University of San Francisco School of Law, where he teaches classes in First Amendment and Media Law.
David has written and lectured extensively on many areas of First Amendment Law, including as a contributor to the International Encyclopedia of Censorship. Before joining EFF, David was for twelve years the Executive Director and Lead Staff Counsel for First Amendment Project, where he worked with EFF on numerous cases including Bunner v. DVDCCA. He also practiced with the firms Bryan Cave LLP and Hancock, Rothert & Bunshoft.
David’s work has been recognized by California Lawyer magazine as a 2013 California Lawyer Attorney of the Year, and by the SPJ Northern California as the recipient of its 2007 James Madison Freedom of Information Award for Legal Counsel. He was also awarded The Hon. Ira A. Brown Adjunct Faculty Award by USF Law School in 2012. He currently serves on the steering committee of the Free Expression Network, the governing committee of the ABA Forum on Communications Law, and on advisory boards for several arts and free speech organizations across the country. He is a 1991 graduate of Duke University School of Law.
About Mindplex
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