Jeremy Siegel: This is GBH's Morning Edition. The clock is ticking on a legal showdown over TikTok. The company and its Chinese owner, ByteDance, officially filed a legal challenge against the U.S. last week over a law that would ban the app nationwide unless it finds a buyer within a year. In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the Constitution and suppresses the speech of millions of Americans. For the latest on this, we're joined now by GBH's Zack Waldman. So TikTok says this legislation is unconstitutional because it suppresses free speech. Is there any legal precedent for this?
Zack Waldman: There is. There are a couple examples actually. So in November, a federal judge blocked a Montana law that sought to prohibit the use of TikTok across the state, saying that the legislation oversteps state power and likely violates First Amendment rights. A few years back, in 2020, another federal judge put the kibosh on an executive order issued by then-President Trump to ban TikTok nationwide after the company sued on the grounds that the order violated free speech and due process rights.
Siegel: So there is a history of legal actions surrounding this. Now, the government is facing this lawsuit over the new law that could lead to a ban of TikTok. What's the government's clearest path to victory here?
Waldman: So constitutional scholars would say that there are a few ways for the government to restrict speech in a way that would survive a legal challenge. One of those ways, perhaps the best one, is if the government can demonstrate a national security risk. TikTok's rebuttal that the law is based on, quote, 'speculative and analytically flawed concerns about data security and content manipulation, concerns that even if grounded in fact could be addressed through far less restrictive and more narrowly tailored means.' So essentially, there's no actual proof of the Chinese government influencing TikTok or its users in nefarious ways, despite critics having called it a, quote, 'spy balloon on our phones.' Even if proven to be true, it's hard to believe that there isn't a less aggressive solution, in my opinion, than shutting down the app entirely within the U.S. And I did chat with one Northeastern University law professor named Elettra Bietti, for a monthly newsletter that I do. She said that this ban does very little in the way of regulating data privacy on social media, a problem that really extends far beyond just TikTok. It's pervasive through many social media apps. And this is from Bietti now: 'from a privacy perspective, the data of American individuals is collected, used and abused by a multitude of actors every day, all the time.' Not to scare people here, but 'there's no reason why Americans will or should feel safer in regards to the integrity of their data and of their digital experiences after a TikTok divestment or ban.' So to boil it down, plain and simple, this is about the protection and really the importance of freedom of speech versus the security risk of a foreign adversary having ties and being connected to one of the most popular apps in the country.
Siegel: Okay, so as you laid out, this may not do anything about data privacy, but it could lead to a ban on TikTok, which, as I mentioned, is wildly popular. It has millions of users in the U.S. What should people who do use TikTok, like organizations, brands, everyday people who are scrolling their phone — potentially for hours on TikTok — what should we be thinking about as this ban legislation plays out in courts?
Waldman: Many, many hours, I would say. And be as ready as you can be for the moment. And I say this as a strategist, for both folks who use TikTok on a professional level and on a personal level. So TikTok's future's in flux. But I'd be shocked if the short-form vertical video craze that it really ushered in is going to just go away and crater overnight. In my opinion, the platform has already really made its mark, regardless of the outcome of the legislation and of the lawsuit. It's revolutionized the way that bite-sized video is shared and consumed digitally all the time. This is also a great lesson in not putting all your eggs in one basket. Whether you're a brand, an organization, a content creator, an influencer, a journalist, you should always be periodically reevaluating the time and resources that you dedicate to every social media platform, TikTok included, based on the numbers, based on the data; where you're seeing growth, where you're seeing folks engaging with your work and your content; the followers that you've spent years and years building and engaging with don't need to just vanish and go away because a platform gets nixed. And then I would also say, don't stop experimenting. Lest we forget, it's been just six years, only six, since TikTok became the most downloaded app in the U.S, seemingly out of nowhere. So there's no telling how quickly hundreds of millions of digital savvy users, social media savvy users, can flock to another cutting-edge app in the next half decade.
Siegel: That's GBH social media strategist Zack Waldman. Zack, thanks so much for your time.
Waldman: Thanks, Jeremy.
Siegel: You're listening to GBH News.
The clock is ticking on a legal showdown over TikTok.
The company and its Chinese owner, ByteDance, officially filed a legal challenge against the U.S. last week over a law that would ban the app nationwide unless it finds a buyer within a year. In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the U.S. Constitution and suppresses the speech of millions of Americans.
And there is some legal precedent to look to, said Zack Waldman, GBH’s social media strategist and author of the monthly newsletter Social Media Portal.
In November, a federal judge blocked a Montana law that sought to prohibit the use of TikTok across the state, saying that the legislation oversteps state power and likely violates First Amendment rights. And in 2020, another federal judge put the kibosh on an executive order issued by then-President Donald Trump to ban TikTok nationwide after the company sued on the grounds that the order violated free speech and due process rights.
“Constitutional scholars would say that there are a few ways for the government to restrict speech in a way that would survive a legal challenge,” Waldman told GBH’s Morning Edition cohost Jeremy Siegel. “One of those ways, perhaps the best one, is if the government can demonstrate a national security risk.”
To that, Waldman said, TikTok’s attorneys say that the law is based on “speculative and analytically flawed concerns about data security and content manipulation, concerns that even if grounded in fact could be addressed through far less restrictive and more narrowly tailored means.”
“So essentially, there's no actual proof of the Chinese government influencing TikTok or its users in nefarious ways, despite critics having called it a 'spy balloon on our phones,'” Waldman said. “Even if proven to be true, it's hard to believe that there isn't a less aggressive solution, in my opinion, than shutting down the app entirely within the U.S.”
Northeastern University law professor Elettra Bietti told Waldman that this ban does very little in the way of regulating data privacy on social media, a problem that extends far beyond just TikTok.
“From a privacy perspective, the data of American individuals is collected, used and abused by a multitude of actors every day all of the time,” Bietti said. “There is no reason why Americans will or should feel safer in regards to the integrity of their data and of their digital experiences after a TikTok divestment or ban.”
To put it more simply: “This is about the protection and really the importance of freedom of speech versus the security risk of a foreign adversary having ties and being connected to one of the most popular apps in the country,” Waldman said.
In March, TikTok celebrated reaching 150 million American users.
So what would a TikTok ban mean for people whose jobs or businesses rely on it?
“Be as ready as you can be for the moment,” Waldman said. “TikTok's future's in flux. But I'd be shocked if the short-form vertical video craze that it really ushered in is going to just go away and crater overnight. In my opinion, the platform has already really made its mark, regardless of the outcome of the legislation and of the lawsuit. It's revolutionized the way that bite-sized video is shared and consumed digitally all the time.”
This is a lesson about not “putting all your eggs in one basket,” Waldman said.
“Whether you're a brand, an organization, a content creator, an influencer, a journalist, you should always be periodically reevaluating the time and resources that you dedicate to every social media platform, TikTok included,” he said. “The followers that you've spent years and years building and engaging with don't need to just vanish and go away because a platform gets nixed.”
After all, Waldman said, it’s been just six years since TikTok became the most downloaded app in the U.S.
“There's no telling how quickly hundreds of millions of digital savvy users, social media savvy users, can flock to another cutting-edge app in the next half decade,” he said.
