Why the TikTok Bill Doesn't Violate the First Amendment (Part I)
Content-neutral laws receive less scrutiny than content-based laws.
Whenever a bill that touches social media is proposed, certain critics will almost reflexively argue that this bill violates the First Amendment. While it is true that social media is a forum for expression—and that bills regulating social media receive heightened scrutiny under the First Amendment—that does not mean a bill violates the First Amendment just because it touches social media.
For example, the Supreme Court upheld the FCC’s must-carry rules—rules that force cable companies to carry local broadcast stations—even though cable is another forum for expression protected by the First Amendment. Likewise, the TikTok bill, which would force the Chinese Communist Party (CCP) to divest TikTok—and would ban TikTok if the CCP refuses to divest—does not violate the First Amendment.
In part I, we’ll cover two key distinctions: between using TikTok and owning TikTok, and between a content-based and content-neutral law. The TikTok bill would still let the Chinese Communist Party use TikTok, but it would restrict their ability to own and control TikTok. Moreover, since the TikTok bill distinguishes between social media platforms based on foreign ownership—not based on the speech on the platform—it is a content-neutral bill only subject to intermediate scrutiny.
We’ll also cover how this bill differs from two past attempts to regulate TikTok: then-President Trump’s executive order to ban TikTok in 2020, and a Montana law that banned TikTok in 2023. Trump’s efforts failed because he did not have the legal authority to ban TikTok—not because he violated the First Amendment. Montana’s efforts failed because foreign policy is the federal government's exclusive domain. The obvious solution to both problems is a federal bill that would force TikTok to divest—and then ban TikTok if they refuse to divest.
Using TikTok vs. Owning TikTok
While the CCP has the right to use TikTok under the First Amendment, it does not have the “right” to own TikTok under the First Amendment.
During the Cold War, the Supreme Court ruled in Lamont v. Postmaster General (1965) that the Soviet Union had a First Amendment right to distribute “communist political propaganda” via the United States Postal Service (USPS). Likewise, the CCP today likely has a right to create a TikTok account and use it to spread its propaganda.
Critics such as Jameel Jaffer of the Knight Institute, however, have cited Lamont to make a very different argument: that the CCP has the right to own and control TikTok. Lamont said that a Soviet company could use the USPS; it never said that a Soviet company could own the USPS.
There’s no private sector in communist China. TikTok’s parent company, ByteDance, is a Chinese company. Under Chinese law—such as the 2017 National Intelligence Law—ByteDance must obey the dictates of the CCP. The lines that divide the public and private sectors in America do not exist in China. People who even criticize the CCP, such as Chinese tech icon Jack Ma, have a habit of mysteriously “disappearing.”
And in America, one TikTok employee, Evan Turner, was “assigned” to a manager in Seattle—a manager he never met—but actually reported to a ByteDance executive in Beijing whom he met with weekly. As Fortune reported, “Nearly every 14 days, as part of Turner’s job throughout 2022, he emailed spreadsheets filled with data for hundreds of thousands of U.S. users to ByteDance workers in Beijing.”
As Alec Stapp of the Institute for Progress (and many others) have pointed out, it would be unthinkable to let the Soviet Union own ABC, NBC, or CBS during the Cold War. So why would we let the Chinese Communist Party control TikTok today?
And to that point, the US does have laws restricting foreign ownership of mass communications media such as radio and broadcast—laws that have not been struck down as unconstitutional. A similar law restricting foreign ownership of social media—another mass communications media—would also be constitutional.
Content-Based vs. Content-Neutral
When critics claim a bill violates the First Amendment, they often use the following template. First, they argue that since the bill regulates speech, it is subject to strict scrutiny. Then, they argue that the bill does not survive strict scrutiny—an easy argument since strict scrutiny is often “strict in theory, fatal in fact.”
When the Supreme Court upheld the FCC’s must-carry rules, however, they applied intermediate scrutiny to those rules. While content-based laws are subject to strict scrutiny, a content-neutral law is only subject to intermediate scrutiny.
What’s the difference between a content-based law and a content-neutral law? That line is not always easy to draw, but “[a]s a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based,” to quote Turner Broadcasting System v FCC (1994).
(There are actually two Turner cases. In Turner I (1994), the Supreme Court ruled that the FCC’s must-carry rules are subject to intermediate scrutiny. In Turner II (1997), the Supreme Court ruled that these must-carry rules also survive intermediate scrutiny.)
As the Supreme Court said in Turner II, “A content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Under strict scrutiny, by contrast, the law must advance a compelling government interest, and it must use the least restrictive means to advance that interest.
The TikTok Bill is Content-Neutral
The TikTok bill is content-neutral for a simple reason: it distinguishes between social media platforms based on foreign ownership, not based on the speech on the platform.
Many critics, however, will implicitly or explicitly assume that strict scrutiny applies, even though that assumption is not warranted. The most egregious example comes from Jennifer Huddleston of the Cato Institute:
Under First Amendment precedents, the government will need to prove that forced divestment or otherwise banning of the app is both based on a compelling government interest and represents the least restrictive means of advancing that interest. In December, a federal district court enjoined a TikTok ban in Montana on First Amendment grounds as it was “unlikely to pass even intermediate scrutiny.”
Here, Huddleston claims strict scrutiny applies without providing evidence that the bill is content-based. The court case that Huddleston cites disagrees. In that case, TikTok argued Montana’s law was content-based, while Montana argued it was content-neutral. While Judge Donald Molloy did not issue a definitive decision, he did say that Montana “is closer to the legal mark.”1
Moreover, Huddleston omits a key reason why Montana’s law did not survive intermediate scrutiny: “Montana does not have constitutional authority in the field of foreign affairs.” Foreign policy is the exclusive domain of the federal government. As a result, “the law’s foreign policy purpose is not an important Montana state interest.”
In the context of Huddleston’s argument on whether the federal government has “a compelling national security interest at stake,” it makes no sense to cite a case that says nothing about that question—other than to say that national security is only a federal interest and not a state interest. Writing for Lawfare, Adam Chan also arrived at a similar conclusion: “When it comes to First Amendment analysis, virtually none of Molloy’s intermediate scrutiny analysis would likely hinder a federal ban.”
If any conclusion can be drawn from the Montana case, it is that this issue can only be solved on the federal level—where the federal government is in a good position to win.
Targeting Social Media is Content-Neutral
The TikTok bill applies not just to TikTok, but to any social media app controlled by China, Russia, Iran, or North Korea. But what about other apps that are foreign-controlled? If the bill only targets social media apps but not other apps, is that content-based? In short, no.
First, cable operators once made a similar argument; they argued that must-carry rules were content-based because they targeted cable but not other mediums of communication. The Supreme Court rejected that argument in Turner I: “It would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others.”2
Quoting Southeastern Promotions v. Conrad (1975), the court also said, “Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Few would doubt today that social media is a unique medium with its own problems.
Second, there is a logical reason why the bill only applies to social media. When then-President Trump tried to ban TikTok in 2020, the courts blocked that ban—not on the basis that Trump violated the First Amendment, but on the basis that he exceeded his legal authority under the International Emergency Economic Powers Act (IEEPA).3
While the IEEPA does give the President the power to deal with foreign-controlled apps in general terms, it also has a “personal communications” exception and an “information materials” exception. (The “information materials” exception is also known as the Berman Amendment.) The court ruled that both exceptions applied to TikTok—and to social media more broadly.
Since the IEEPA does not apply to social media apps, it would logically make sense to create a separate law for social media apps. The IEEPA can still be used, however, for other apps that are not subject to the “personal communications” or “information materials” exceptions; there’s no need to create a new law for those apps.
Intermediate Scrutiny (Part II)
Now that we have established that the TikTok bill is a content-neutral bill only subject to intermediate scrutiny, we must ask this question next: can the bill survive intermediate scrutiny? In short, it can, but we’ll cover that in part II…
You can read part II here.
Judge Malloy also rejected an argument that Montana’s law is a prior restraint, which is why I don’t cover that argument in this piece.
Conversely, some have proposed that the bill should be narrowed to cover only TikTok and not social media more broadly, but that change would raise First Amendment concerns: “Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.”
The court also ruled that the Trump administration had violated the Administrative Procedure Act (APA).