State-Run TikTok Coming Soon?
Not if Rand Paul and Ro Khanna can help it.
President Donald Trump was TikTok's original political antagonist. Now he's positioned himself as the beleaguered video app's savior. In a Day 1 executive order, Trump declared that a law effectively banning TikTok should not be enforced.
This is good news for TikTok and its users—for now, at least. But it might not be good for constitutional order broadly, to the extent that it represents a president declaring a law passed by Congress to be impotent simply because he says so.
It could ultimately be bad for free speech, too, given Trump's ideas about how to proceed from here. On Truth Social and in the Oval Office, he's been floating the idea of giving the U.S. government partial ownership of TikTok.
Perhaps the best hope for resolving this mess in a democratic manner is a new bill being proposed by Kentucky Republican Sen. Rand Paul. "They don't ban speech to protect you. They ban speech to control you," Paul posted to X. "That's why today, I'm introducing a bipartisan, bicameral bill to repeal the TikTok ban."
A companion to Paul's "Repeal the TikTok Ban Act" was introduced in the House of Representatives by California Democratic Rep. Ro Khanna.
The bills would repeal the full Protecting Americans from Foreign Adversary Controlled Applications Act, which goes far beyond TikTok. The act granted the president the right to issue bans on apps associated with "foreign adversary" companies.
In addition to granting this power broadly, the Protecting Americans from Foreign Adversary Controlled Applications Act specifically called out TikTok and its parent company ByteDance. It gave ByteDance until January 19, 2025, to divest of TikTok or face a ban.
TikTok and its users appealed to the courts, eventually elevating the matter to the U.S. Supreme Court. Last Friday, the Court rejected their pleas to stop the ban or divest process from playing out.
As of January 18, app stores had removed TikTok, and the TikTok app and website displayed the message: "A law banning TikTok has been enacted in the U.S. Unfortunately, that means you can't use TikTok for now."
Today, the app is still missing from the Apple App Store and the Google Play store.
But it's business as usual on the TikTok website and app today.
"In agreement with our service providers, TikTok is in the process of restoring service," the company said in a statement posted to X. "We thank President Trump for providing the necessary clarity and assurance to our service providers that they will face no penalties providing TikTok….It's a strong stand for the First Amendment and against arbitrary censorship."
Trump's order, issued yesterday, tells the Department of Justice not to enforce the TikTok ban for 75 days. It also tells state officials that enforcing it would be "an encroachment on the powers of the Executive."
But… can Trump legally do this? Executive orders "can't just override Congress, but Trump is hoping the companies (Oracle, Apple, etc.) take his word and defy the law," suggested Washington Post tech reporter Drew Harwell. Meanwhile, law professor and legal blogger Eugene Volokh describes the order as simply "the exercise of the Executive Branch's enforcement discretion." (Though Volokh also notes that he "can't speak to whether there are any loopholes here, or other matters that might cause unintended consequences.")
So, is this a mere matter of enforcement discretion? Or an attempt to declare a law passed by Congress and signed by a predecessor to be void?
The fact that Trump is attempting to stop states from enforcing it, too, suggests at least some overstepping of authority. And this is troublesome. As bad as the Protecting Americans from Foreign Adversary Controlled Applications Act is, stopping it shouldn't be cause for violating traditional democratic processes or condoning an expansion of executive reach.
This wouldn't be the first time Trump has issued an overreaching executive order regarding TikTok, of course. Last time he was in office, Trump tried to use executive power to effectively ban the app. Federal courts had to step in and block implementation of Trump's original TikTok order.
In any event, the worst may be yet to come.
Trump's new TikTok order doesn't mention nationalizing the app, thank goodness. But on Truth Social on Saturday, Trump suggested "a joint venture between the current owners and/or new owners whereby the U.S. gets a 50% ownership in a joint venture set up between the U.S. and whichever purchase we so choose."
And "speaking to reporters in the Oval Office, Trump reiterated his desire to see the company sold off through a 'joint venture' between the United States and TikTok's current owners, though his precise plans remain unclear and fluid," The Washington Post reported yesterday. "Trump suggested the United States could get half of TikTok's value for negotiating and approving the deal, speculating that the app could fetch up to $1 trillion." Trump also suggested that in such a scenario, the U.S. government "polices" the app.
This could just be Trump bluster. And it's unclear how much control over the app that Trump envisions American authorities having. Nonetheless, the underlying idea is still unsettling.
Political complaints about TikTok have centered on fear that Chinese authorities could access U.S. user data and/or be able to influence the TikTok algorithm. It's always been a bit unclear how your average user would be threatened or deeply impacted by any of this. But putting this power into the hands of the U.S. government would be a different story. That leaves much more room for direct abuses of authority and invites attempts at information control on subjects much closer to American hearts.
I don't want to see TikTok banned. I'm disturbed by the very fact that so many lawmakers voted for the Protecting Americans from Foreign Adversary Controlled Applications Act in the first place, and I'm disturbed that the Supreme Court upheld its TikTok provisions. Both of these developments bode badly for free speech. But if Trump's solution is to first expand executive power to stop the ban and then to nationalize TikTok, we're looking at an even worse situation for civil liberties and the First Amendment.
No matter what informational threat China may pose, we're worse off if U.S. authorities can force a foreign tech company to give over control to our own government or be banned.
As Paul noted in introducing his Repeal the TikTok Ban Act: "The right to free speech doesn't come with exceptions—not for apps, not for ideas, not for politicians who think they know better than you."
