Big Tent Ideas

GORDON CHANG: Is A TikTok Ban Constitutional?

(Photo by Alex Wong/Getty Images)

Daily Caller News Foundation logo
Gordon Chang Contributor
Font Size:

Adi Robertson, The Verge’s senior tech and policy editor, makes an impassioned plea to not ban TikTok, China’s popular video-sharing app, on free speech grounds. Rand Paul (R-Ky.), speaking on the floor of the Senate on March 29, also raised First Amendment objections to a proposed TikTok prohibition.

Nonetheless, it is time to either ban TikTok or force the sale of all its shares to American parties. The American owners must also control all the app’s algorithms, in particular, the algorithms curating content. If Beijing does not permit such a sale, the federal government should expropriate TikTok.

“The First Amendment includes a right for citizens to receive information—even, in fact, foreign propaganda,” Robertson correctly writes in “The TikTok Ban Is a Betrayal of the Open Internet.” “And banning TikTok would affect not only speech from TikTok but also the speech of users on the platform, who could see their videos made inaccessible.”

A forced sale, however, does not run afoul of the First Amendment. TikTok’s owner, ByteDance Ltd., is a Chinese company and therefore has no constitutional right to operate the popular app, which now has approximately 150 million users in the United States. (ALEXANDER FLEISS: Google Searching For The Truth? Good Luck With That)

A legislative ban of the app, however, raises difficult constitutional issues. Congress is now considering the Restricting the Emergence of Security Threats That Risk Information and Communications Technology Act, sponsored by Senators Mark Warner (D-Va.) and John Thune (R-S.D.). The RESTRICT Act, as the proposed legislation is known, creates a framework for the secretary of commerce to review foreign-linked social media platforms and to take action if necessary.

The legislation, intended to target TikTok, is controversial and being criticized as overbroad.

On its face, the RESTRICT Act comes close to infringing the most important right enshrined in the Constitution: “Congress shall make no law… abridging the freedom of speech, or of the press.”

Is a TikTok ban constitutional?

“If it’s time to abandon the idea that Americans should be allowed to access information from around the world on their own terms—including information that might be bad for them—I haven’t seen the evidence yet to justify it,” Robertson writes.

No evidence? As an initial matter, Ms. Robinson is wrong when she minimizes China’s regime as “authoritarian.” Let us be clear: Americans are not fighting “Chinese authoritarianism.” They are up against China’s totalitarianism.

Xi Jinping is seeking to impose on the world China’s imperial-era totalitarian system in which Chinese emperors believed they had the Mandate of Heaven over tianxia, or “All Under Heaven.” Indeed, Xi is swiftly erecting totalitarian controls inside China, which he undoubtedly will extend to America and the rest of the world if he gets the opportunity. In short, the threat to the U.S. is existential.

The threat is also urgent because China’s ambitious ruler is making preparations for war. His regime in fact declared a “people’s war” on America, which is the Communist Party’s way of justifying a strike on the U.S. We are a society in the last moments of peace.

There are, consequently, critical factors that legitimize curbs that would otherwise infringe First Amendment protections.

Xi has already used TikTok to attack the United States. Radio Free Asia reported in August 2020 that a People’s Liberation Army intelligence unit, working out of the now-closed Houston consulate, was using big data to identify Americans likely to participate in Black Lives Matter and Antifa protests, and then created and sent them “tailor-made” videos on how to organize riots. Related reporting reveals the videos were distributed by TikTok.

The Chinese Communist regime has not only used TikTok to foment violence—an act of war—it has also routinely employed the app to illegally steal and send data to China. China’s app can access each keystroke of every user and even their location at any moment. “It is very much like giving them the keys to the kingdom,” said Evan Greer of Fight for the Future, a privacy group, to Fox Business.

TikTok has consistently lied to Congress and the American public about data security.

For instance, BuzzFeed reported on June 17 of last year that audio recordings of more than 80 internal TikTok meetings showed that ByteDance employees had accessed nonpublic U.S. user data from September 2021 to the following January. “Everything is seen in China,” a member of TikTok’s Trust and Safety Department said. A “Beijing-based engineer” known as “Master Admin” had “access to everything.”

Moreover, the U.S.-based operations of TikTok were mere window dressing. “U.S. staff did not have permission or knowledge of how to access the data on their own, according to the tapes,” the news site reported. TikTok had said it never shared user data with the Chinese government and would not do so. The BuzzFeed reporting revealed this assurance and similar ones to the federal government were false.

TikTok’s criminality justifies the banning of the app. In short, China’s regime, conducting what its military calls “unrestricted warfare,” has employed TikTok against the United States. “If the CCP can weaponize a balloon, think about what it can do with 150 million American TikTok users at its mercy,” Keith Krach, chair and co-founder of the Krach Institute for Tech Diplomacy at Purdue University, tells Gatestone.

The Communist Party has used TikTok to, among other things, glorify drug use, push critical race theory, and amplify Russian disinformation about the war in Ukraine. The CCP does not allow the Chinese people to use the app. TikTok’s twin site in China, Douyin, promotes patriotic themes.

“TikTok is a powerful tool of national subversion and indoctrination,” said Brandon Weichert, author of the upcoming Biohacked: China’s Race to Control Life, to this site. Weichert believes Beijing has been using the app, with its powerful algorithms, to make Chinese propaganda fun and in the process turn younger Americans against their country. “Congress must ban this odious app before we lose an entire generation and the entire country with it,” he says.

Yes, this is a do-or-die moment for America. China’s regime has a dagger, in the form of TikTok, pointed at the heart of the United States, and Americans have to figure out a way to make sure the Communist Party can no longer use it, First Amendment or no First Amendment. “The Constitution,” as is often said, “is not a suicide pact.”

Gordon G. Chang is the author of The Coming Collapse of China, a Gatestone Institute distinguished senior fellow, and a member of its Advisory Board.

Follow Gordon G. Chang on Twitter

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

This article was originally published by the Gatestone Institute and can be found here.

All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact