(The Washington Examiner)—Earlier this year, my company, BASED Politics, filed a lawsuit against the Biden administration over its pending TikTok ban.
The ban is a tremendous attack on the free speech rights of content creators, including us, who use this app to voice our opinions and help educate people about prominent public policies and political ideologies. Obviously, the ban would impose a drastic barrier to our work.
The government claims the ban serves national security interests. But the Supreme Court has ruled that national security could only justify suppressing speech to address an immediate threat, and the Biden administration hasn’t shown that TikTok poses such a threat.
The government also argues that the ban is necessary to stop the spread of ideas that are against the U.S. government’s interests. But that’s not a justification: The point of the First Amendment is to stop the government from censoring speech that it thinks goes against its interests. In fact, the Supreme Court specifically ruled, decades ago, that people have the right to receive foreign communist propaganda.
People not only have a right to speak freely, but they also have a right to hear and consume the thoughts and speech of others holding a variety of political opinions. And on TikTok, the speech at issue is mostly not the speech of the Chinese government but the speech of other Americans. That means the TikTok ban is not only an attack on my free speech rights as an activist and content creator, but it’s also an attack on the free speech rights of the 170 million people who use this platform to hear information.
Many have argued that TikTok, as a foreign-owned company, has no free speech rights. But that is beside the point: No matter who owns the platform, people have a free speech right to access information, express themselves in response, and associate freely via a unique medium of communication. Our case isn’t about TikTok’s rights, though TikTok has its own lawsuit with good arguments on its behalf. It is fundamentally about the free speech rights of all people. The app is just a convenient excuse to go after what politicians really want to chip away at: the First Amendment.
In recent years, both parties have assaulted our free speech rights in numerous ways. It’s vitally important that people know that and start paying attention. As it happens, TikTok advocacy is one of the primary ways the public might learn about these free speech violations as legacy media have been largely quiet on this front. From laws that give the government overt power to censor social media to frequent attempts to label platforms as publishers, politicians are desperately trying to regain control of the narrative they lost when social media began to replace traditional news sources.
In the fight against censorship, the courts have become our last line of defense. And fortunately, a number of principled judges on the Supreme Court and lower courts have been upholding people’s First Amendment rights.
For example, in Sable Communications v. FCC, a case that focused on the constitutionality of a federal law that prohibited indecent and obscene telephone messages, the court held that while the government can protect children from inappropriate content, a blanket ban that restricts adult access to indecent speech goes too far. The decision reaffirmed the principle that restrictions on speech must be narrowly tailored and cannot infringe upon adults’ rights to access lawful speech, even if it is offensive or sexually explicit.
And in Reno v. American Civil Liberties Union, when the internet was still new and politicians were bad at figuring out how free speech laws would apply to it, the courts held that criminalizing the transmission of “indecent” or “patently offensive” materials over the internet was unconstitutional under the First Amendment. The majority opinion also pointed out that broad restrictions could suppress a wide range of lawful speech intended for adults and rejected the argument that the internet should be subject to the same regulation as broadcast media.
As these laws fell for their unconstitutional overreach, so should the TikTok ban. The answer to speech you don’t like is more speech, not less.
The government has ample leeway to craft laws that would target its purported goals of national security or data collection specifically. If the TikTok ban is struck down, Congress can still address concerns about threats Chinese apps may pose. It will just have to do so in a way that respects people’s right to free speech.
Hannah Cox is the president and co-founder of BASED Politics, plaintiff in the Liberty Justice Center’s lawsuit challenging the proposed Federal TikTok ban.