The information war is upon us and we only have one real threat: China. China is notorious for leveraging communication networks and technology companies to gain advantages over its international rivals. President Biden’s Director of National Intelligence Avril Haines expressed her concerns over how China uses apps and communication networks to “develop[] frameworks for collecting foreign data and pulling it in . . . to target audiences for information campaigns or for other things . . . .” Haines’s remarks show precisely why Chinese apps, like TikTok, are so dangerous.

Given that the app has 80 million active American users, TikTok’s data-privacy practices and relationship to the Chinese Communist Party (CCP) matter to our national security. FBI Director Chris Wray warned of the app’s ability to use its algorithms for “influence operations.” He also suggested that China can use the app to conduct espionage operations.

TikTok’s U.S. representatives have been entirely opaque on these matters and have even lied to Congress about its CCP connection under oath. It is no wonder that a bipartisan group of governors and Congress banned the app on government devices last year. Now, there are bipartisan calls to ban it from our markets entirely given the extraordinary risk TikTok poses.

However, some take issue with banning the app commercially because of the First Amendment’s guarantee of free speech.

Let’s unpack this a bit.

Academics arguing this position rely on a broad interpretation of the Supreme Court case Packingham v. North Carolina. In Packingham, the Supreme Court held that a North Carolina law prohibiting sex offenders from having social media accounts violated the First Amendment. The Court reasoned that the law prevented the covered person from engaging in the “modern public square.”

Daniel Lyons of the American Enterprise Institute argues that banning TikTok would be tantamount to placing all Americans in the same position as the sex offenders in Packingham. The logic is that, if the United States were to ban TikTok outright, it would prevent all Americans wishing to “speak” on TikTok from doing so. Thus, the government would be stifling those users’ speech by taking this platform away.

There are a few issues with this analogy. For one, a ban would be a restriction on the company, where the N.C. law in Packingham placed the burden on the individual users. What’s more, the N.C. law restricted those individuals from accessing social media sites across the board, not just TikTok.

However, if it is TikTok’s speech that the government would be suppressing, it’s unclear how the opinion can be construed as providing guidance on banning a foreign social media company from our domestic markets. Although it is true that TikTok does host speech and views, the company itself is not and does not hold itself out as a news agency or news website promoting its own perspective. TikTok is a social media app that passively hosts third-party content. Merely providing services in the U.S. does not necessarily entitle a company to First Amendment protections.

A better analogy here is to instances in which the government has banned communications companies from operating in the U.S. for the same reason it would do so in the case of TikTok. For instance, the Federal Communications Commission banned Chinese-owned communications companies, such as Huawei, China Telecom, and ZTE, from entering our networks. The D.C. Circuit upheld the banning of all those companies from our markets without a scintilla of concern regarding violating the First Amendment.

Furthermore, as Lyons concedes, some legislation that would result in a ban on TikTok would be content neutral. He notes that measures providing the President an affirmative directive to use his powers under the Emergency Economic Powers Act to “block and prohibit” transactions with TikTok’s parent company, ByteDance, would be content neutral. He reasons that such a law would not be calling for government censorship of any particular type of speech.

For a law to pass muster under the First Amendment, the government would need to show that the restraint on speech, if any, is narrowly tailored to serve a “significant government interest” and leaves open reasonable alternative avenues for expression. Protecting national security is definitely a significant, if not compelling, government interest, and banning an app that directly threatens it would be sufficiently tailored to that interest. And a ban would be limited to TikTok only, leaving open access to other social media sites (e.g., Instagram, Snapchat, etc.). Thus it almost certainly would pass constitutional scrutiny.

Finally, a ban would be on TikTok’s conduct. The First Amendment protects speech, not conduct alone. To receive First Amendment protections for conduct, the conduct must be expressive. Common examples are burning a flag in protest of a particular policy or kneeling during the national anthem in response to Black Lives Matter. A law prohibiting TikTok from contracting with ByteDance (and the CCP by implication) is not targeting a form of expressive conduct protected by the First Amendment.


The First Amendment and the Constitution at large are agnostic to banning TikTok. The decision whether to do so should be made based on national security policy considerations, not misguided constitutional concerns.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].