TikTok Measure Passed by House Is Unconstitutional in Multiple Ways

Tick Tock for TikTok

Is TikTok's time finally up? On Saturday, the House of Representatives passed a measure that would require a change in the app's ownership or ban it if that doesn't happen.

Called the Protecting Americans from Foreign Adversary Controlled Applications Act, it's essentially the same divestiture-or-ban bill I wrote about in this newsletter back in March, now tucked into a larger bill (H.R. 8038, the insanely named 21st Century Peace through Strength Act) that deals with everything from fentanyl trafficking to Russian sanctions, Iranian petroleum, Hamas, and boatloads of foreign aid.

The most talked-about part of the Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok unless it completely breaks ties with its Chinese parent-company, ByteDance, within 270 days.

But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.

Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.

It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.

The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.

And it would grant the president broad power to determine who meets this bill, opening the measure up for all sorts of potential abuse.

There are multiple ways in which this legislation likely violates the Constitution.

The most obvious constitutional problem is the First Amendment. The bill suppresses the free speech rights of Americans who post to TikTok and of those who consume TIkTok content.

It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional.

And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week.

Paul thinks the Supreme Court "will ultimately rule it unconstitutional because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves," and "rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court."

Paul's point brings up an important—and often overlooked—factor in all of this: No one has produced evidence of any specific legal infractions committed by TikTok, let alone proven such offenses took place. There's a ton of speculation about what TikTok could be doing, but that's it. A lot of people seem sure that TikTok is a tool of the Chinese Communist Party and you're a fool if you think otherwise. And maybe it is! But that still doesn't mean we can simply sanction the company with no due process, as Paul points out.

Speculation about what the app's ties to China mean may be a good reason for certain people to approach TikTok with caution. But they cannot justify legal action against TikTok.

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