President Trump may be the first U.S. president to ban communication platforms by declaring a national emergency during peacetime. The ban may result in a violation of the constitutional right to free speech if his administration outlaws popular apps TikTok and WeChat without adequate substitutes for them.
On August 6, Trump issued executive orders to ban TikTok and WeChat from operating in the U.S., giving Chinese-owned parent companies until September 15 to find American buyers.
Trump claimed his presidential authority to initiate the ban stemmed from the National Emergencies Act and the International Emergency Economic Powers Act, believing that the companies’ proximity to the Chinese government poses a threat to national security. However, Trump did not specify how the ban would be executed, whether prohibiting Americans would be from downloading the apps or banning app stores from selling them.
He said that TikTok uses a variety of invasive measures to collect users’ information, such as their location, browsing and search histories. In his executive orders, he wrote that allowing the apps to operate in the U.S. “…potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage”.
Gauging the effectiveness of the TikTok ban
“There is an important purpose of protecting national security, but there’s a real question as to whether banning the app is really the least restrictive way that you can do that,” said Lata Nott, executive director at the First Amendment Center and fellow for the First Amendment at Freedom Forum Institute, in a phone interview.
The government can impose content-based restriction on free speech to regulate a specific expression to protect national security if the ban achieves only that purpose, said Nott. But, Trump’s order would still violate the constitutional rights as he issued orders without targeting specific expressions.
“When you are banning Americans from using a particular app, you’re preventing them from accessing the software but also the content on the network, [which] is a form of censorship, and it may violate the First Amendment,” she said.
Under the First Amendment, Americans have freedom to express opinions without censorship, including the rights to use offensive words to convey political messages, protest a war and engage in symbolic speech, according to the U.S. Federal Courts’ website.
“You have a right to free speech, but you don’t necessarily have the right to buy a very loud megaphone, so issues of regulation of a particular tool, especially one with easy substitutes, don’t usually present as the First Amendment issues,” said Michael Froomkin, a law professor at University of Miami who specializes in Internet law, in an email.
While Americans can share short videos on other social media apps, such as Vine, Instagram, Twitter and Facebook, he said the TikTok ban would not necessarily violate the constitutional right of free speech.
“If those don’t exist, it can get to be a harder question,” Froomkin added.
Bracing for impact
If the ban seeks to prohibit using the apps in the country, it would impact over 45.5 million current TikTok users in the U.S., according to Statistia.
Since Trump’s executive orders are still unclear, Nott said American TikTok users should save their short videos and make “the best plan for the worst” before the ban takes effect.
“There’s a real First Amendment concern, and I would tell people who invest in the TikTok community that there’s a good chance they’ll be vindicated,” she said, adding creators can prepare to repost their contents by saving them when the ban is overruled.
Moreover, prohibiting app stores, such as Apple and Google, from distributing TikTok and WeChat can also be a constitutional violation as tech companies have claimed code is a form of speech.
“If you think of code as speech, then apps are basically their form of speech,” said Nott, adding the Supreme Court has never accepted the idea that code is speech.
“They’re like books, and the First Amendment basically says that a bookseller can sell whatever books they want, whether the government approves of those books or not,” she said.
Electronic Frontier Foundation, a nonprofit organization to protect civil rights and liberties in the digital world, wrote that code is speech as lower courts in California have ruled before.
“As a practical matter, an app store ban would not be particularly effective, as close to 100 million people in the U.S. already have the app. However, an inability to get updates—as a result of a ban—would create a security nightmare,” according to the EFF’s article. “Major vulnerabilities left unpatched would leave TikTok users susceptible to a variety of attackers, up to and including the Chinese government.”
Nott noted that the Supreme Court has set the precedent that restrictions on free speech are considered constitutional during times of war.
During the American Revolution, the Sedition Act of 1798 was passed to target dissenters of the Adams administration, leading to the prosecution of at least 26 individuals. President Lincoln also repressed freedom of speech and the press in the Civil War era to hold Confederate sympathizers accountable.
“There are times when imposing on people’s First Amendment rights is allowed because of national security interests, [which] outweigh those rights,” said Nott.“ Those are very rare occasions, but it can happen.”