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Opinion | There's a Problem With Banning TikTok. It's Called the First Amendment. (Published 2023)

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Opinion|There's a Problem With Banning TikTok. It's Called the First Amendment.

https://www.nytimes.com/2023/03/24/opinion/tiktok-ban-first-amendment.html

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Guest Essay

Credit...Photo illustration by Leslie dela Vega/The New York Times; photograph by Nikolai Mentuk/Getty Images

By Jameel Jaffer

Mr. Jaffer is a lawyer and the executive director of the Knight First Amendment Institute at Columbia.

The First Amendment has so far played only a bit part in the debate about banning TikTok. This may change. If the U.S. government tries to shut down this major communications platform, the First Amendment will certainly have something to say about it.

Perhaps the reason First Amendment rights haven't received more attention in this debate already is that TikTok is a subsidiary of ByteDance, a Chinese corporation that doesn't have constitutional free speech rights to assert. But if we set aside the question of TikTok's rights, the platform's users include more than 150 million Americans, as TikTok's chief executive testified at a contentious congressional hearing on Thursday. TikTok's American users are indisputably exercising First Amendment rights when they post and consume content on the platform.

Six years ago, in Packingham v. North Carolina, the Supreme Court struck down a law that prohibited convicted sex offenders from using social media, reasoning that these websites had become "integral to the fabric of our modern society and culture."

A half century before that, the Supreme Court decided a series of cases recognizing that the First Amendment protects not only the right to speak but also the right to receive information, including the right to receive information and ideas from abroad. In one of those cases, Lamont v. Postmaster General, the court invalidated a federal law that barred Americans from receiving "communist political propaganda" from foreign countries unless they specifically asked the Postal Service to deliver it. The court held that the law was an impermissible attempt "to control the flow of ideas to the public."

So there's really no question that government action whose effect would be to bar Americans from using a foreign communications platform would implicate the First Amendment. That's exactly what one federal court held two years ago when it blocked President Donald Trump's attempt to ban WeChat, the Chinese messaging app.

Of course, to say that a ban on TikTok would implicate the First Amendment is not to say that it would violate it. But a ban would have to satisfy First Amendment scrutiny to survive a constitutional challenge.

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