ACLU calls proposed US TikTok ban unconstitutional

The free speech versus national security battle rages on, once again focusing its main artillery on TikTok.

Immediately following the introduction of yet another bill proposing to ban "foreign adversary controlled applications," including TikTok, the ACLU issued a warning that the bill was an unconstitutional violation of the First Amendment.

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“We’re deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year. Just because the bill sponsors claim that banning TikTok isn’t about suppressing speech, there’s no denying that it would do just that. We strongly urge legislators to vote no on this unconstitutional bill,” wrote ACLU senior policy counsel Jenna Leventoff.

The bill is set to be voted on by the House Energy and Commerce Committee this Thursday.

"So long as it is owned by ByteDance and thus required to collaborate with the [Chinese Communist Party], TikTok poses critical threats to our national security," said Congressman Raja Krishnamoorthi upon the bill's introduction.

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In December, a U.S. judge blocked a Montana statewide ban on TikTok — introduced and signed into law just seven months earlier. At the time of its passing, the ACLU spoke out against the state's decision, writing: "Lawmakers at the state and federal level are growing concerned over the prospect of American users’ data becoming accessible to the Chinese government. While data privacy is a concern across all social media apps, the singling out of TikTok out points to an anti-Asian sentiment that is racist. What’s more: The banning of a social media app would be a dangerous act of censorship on the free speech of so many Americans."

In addition to the company's own legal recourse, a group of TikTok creators filed a lawsuit against the state, arguing that the ban not only violated free speech protections but that it also violated the interstate Commerce Clause by blocking the marketplace for their monetized content.

The ACLU point to a continued anti-Chinese sentiment held by political representatives in their evaluation of TikTok's ownership and privacy considerations. At a recent hearing on child safety with some of social media's biggest leaders, TikTok CEO Shou Zi Chew was questioned repeatedly about his ties to China and the Chinese Communist Party. Chew is Singaporean.

A few months earlier, the U.S. leaders, TikTok creators, and social media companies clashed over several bipartisan bills, including the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Actand HR 1153, which would grant the president power to take action against tech companies affiliated with China, Cuba, Iran, North Korea, Russia, and Venezuela and ban TikTok or similar softwares that present a "national security risk."

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And in 2020, former president Donald Trump signed an executive order in an attempt to ban Chinese-owned apps TikTok and WeChat.

Other foreign governments, college campuses, companies, and federal and state offices have also made the move to ban the app out of fears of data privacy and national security, but the ACLU and other civil liberties groups have maintained a strong stance against similar legislation. And past failures indicate that its unlikely such a ban would succeed.

"The ACLU has repeatedly explained that banning TikTok would have profound implications for our constitutional right to free speech and free expression because millions of Americans rely on the app every day for information, communication, advocacy, and entertainment," the organization asserted. "And the courts have agreed."