At the very least, the government “must demonstrate that the recited harms are real, not merely conjectural. In a First Amendment challenge, courts would apply at least “intermediate scrutiny” to a TikTok ban and, depending upon the government’s intentions and the ban’s language, might apply “strict scrutiny.” Either way, the government would have to prove that its ban is “ narrowly tailored ” to national security or other concerns. It would also intrude on TikTok’s interest in disseminating its users’ videos-just as bookstores have a right to sell books written by others, and newspapers have a right to publish someone else’s opinion. If the government banned TikTok, it would undermine the free speech and association of millions of users. Many users create and enjoy entertainment like dance videos. Political candidates connect with voters. TikTok videos address topics “ as diverse as human thought.” Political satirists mock politicians. Many users choose TikTok over its competitors because of its unique content recommendation system to such users, social media platforms are not fungible. It has 100 million monthly users in the United States, and a billion worldwide. It is owned by ByteDance, a company headquartered in China. TikTok is a social media platform that hosts short videos. By reducing the massive stores of personal data collected by all businesses, TikTok included, we will reduce opportunities for all governments, China included, to buy or steal this data. Rather, we must enact comprehensive consumer data privacy legislation. Still, the best solution to these problems is not to single-out one business or country for a ban. TikTok raises special concerns, given the surveillance and censorship practices of its home country, China. Nearly all social media platforms and other online businesses collect a lot of personal data from their users. Before taking such a drastic step, the government must come forward with specific evidence showing, at the very least, a real problem and a narrowly tailored solution. So we are troubled by growing demands in the United States for restrictions on TikTok, a technology that many people have chosen to exchange information with others around the world. Politicians shouldn’t be able to tell you what to say, where to say it, or who to say it to.
Freedom of speech and association include the right to choose one’s communication technologies.
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