Speech and Content, Algorithms and Data

Does the Chinese government have a First Amendment right to influence Americans?

Jan 14, 2025

Update: On January 17, 2025, the following opinion was released by the Supreme Court, concluding the challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act “do not violate petitioners’ First Amendment rights.”

Let’s get right into it with a full disclosure from the start — I hate TikTok. I think the danger it poses to the American people is more than apparent — far more so than “comparable” social media platforms (e.g., Instagram). I don’t understand how people can be so lackadaisical in their demeanor towards the app. I also happen to think the argument that “TikTok provides a unique free speech platform” is laughable.1 Of course, saying all of that perfectly cues up the “well Paul can’t possibly be fair to TikTok if he admittedly hates it” argument.

Wrong! I can totally be fair to TikTok. The real question is can those of you who are addicted to the ridiculous brain inhibitor app handle the truth? I mean, just read this headline … Is TikTok a company really worth defending?

Jokes aside… (because obviously my issue with TikTok isn’t about a terrible disaster leave policy) I promise to do my level best here. To accomplish what I believe is a fair and transparent discussion on this issue, I’ve broken today’s piece into three “bite sized” sections. We are going to cover: (1) the law intended to ban TikTok; (2) the case as it appeared before the Supreme Court on January 10, 2025; and (3) the real-world dangers TikTok presents to the economic and security interests of the United States.

Before we begin, I would encourage you to click on the hyperlinks as they appear throughout this piece. I’ve linked articles and discussions — and even the law itself and amicus briefs related to TikTok’s case before the Supreme Court — all in an effort to provide insight of the more intricate details that I am otherwise attempting to pull up a level for us today (bonus points to anyone who catches the consulting phrase in that sentence). With that, let’s get started.

Part 1: The Law

On April 23, 2024 Congress passed, and the following day President Biden signed, a bill known as the Protecting Americans from Foreign Adversary Controlled Applications Act (hereafter referred to as “the law” or “the TikTok ban”). The short and sweet of the law is that TikTok can choose to divest from its Chinese owned parent company, ByteDance, by January 19, 2025 or it can face a ban in the United States. Pretty straight forward right? Wrong!

The law’s legislative history exposed itself to First Amendment concerns. Prior to the law passing, The Foundation for Individual Rights and Expression (“FIRE”) quickly jumped to defend TikTok.2 FIRE was and has been concerned the TikTok ban is a form of “government retaliation” for “a private social media platform’s exercise of editorial discretion.” The legislative record and history of this law evidences a purpose of the law is to prevent TikTok from pushing “misinformation, disinformation, and propaganda on the American public.”3

Plenty of smart people might argue this is problematic for the government’s position given TikTok — and by extension ByteDance and the Chinese government — are not, generally speaking, creating the content which otherwise would be characterized as misinformation, disinformation, or propaganda. Rather, individual users create content and then TikTok determines how that content is spread to consumers using their protected content recommendation algorithm. Put another way, people might argue the U.S. government is seeking to silence the voices of 170 million Americans because the Chinese government might elevate certain, arguably harmful, content on the app for American consumption.

A prime example of this free speech conflict was evidenced on March 7, 2024 when the House Energy and Commerce committee held a hearing on TikTok. During the hearing, TikTok used its algorithm in real time to push content to American users encouraging them to contact their elected officials voicing their support of TikTok. Was that speech harmful? Arguably not — at least when compared to TikTok’s censorship of China’s serious human rights violations against the Uyghurs — but it’s content that a foreign government wished to use in an effort to influence Americans all the same.

And therein lies our problem. We have a foreign government, the Chinese Communist Party (“CCP”), attempting to influence Americans on a daily basis (they are doing a pretty good job by the way). The CCP does this through a variety of means, including monitoring and data collection on the American people. The U.S. government passed a law to address these national security concerns. All should be good right? Wrong!

The U.S. government hasn’t done a great job at promoting the law’s intended purpose — to prevent a foreign government from manipulating, harvesting, and using Americans’ data.4 National security after all, not speech, is the driving purpose of the law.5 Yet here we are, watching the government trip over its own feet because they just couldn’t help themselves but admit they are concerned about Chinese influence over content. The Cato Institute pointed this out in their amicus brief in support of TikTok:

“In its briefing to the D.C. Circuit below, the government argued that the law is necessary to prevent TikTok from being used to amplify speech that could ‘undermine trust in our democracy and exacerbate social divisions.’”

So here is where we need to shift gears if we ever hope to move along. The speech concerns up to this point, while seemingly well founded if they maintain their root in the content of speech, begin to lose quite a bit of strength when you consider the law isn’t actually banning or controlling content.

Wait… Haven’t we spent the past five minutes going on and on about content? Yes we have, and for good reason. It was necessary to build a foundation for what content is so we could distinguish it from the law’s actual method of protecting national security, which is to force the divestiture of TikTok from foreign control. The divestiture is the key. Let’s take a look at this excerpt from the law:

(6) QUALIFIED DIVESTITURE.—The term “qualified divestiture” means a divestiture or similar transaction that—
(A) the President determines, through an interagency process, would result in the relevant foreign adversary controlled application no longer being controlled by a foreign adversary; and
(B) the President determines, through an interagency process, precludes the establishment or maintenance of any operational relationship between the United States operations of the relevant foreign adversary controlled application and any formerly affiliated entities that are controlled by a foreign adversary, including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing.

“Okay but that is lots of legalese, Paul. Chill out!” I hear you and I understand. But don’t worry, it’s really pretty straight forward. Basically the law is saying, “TikTok can continue to operate so long as the foreign adversary no longer controls TikTok and the content recommendation algorithm or data practices employed by TikTok.”

Should TikTok divest to an American company that controls the content recommendation algorithm and data practices then everything is fine. If Meta, as an example, were to buy TikTok under this premise then the content could remain the exact same! In fact, Meta could use the exact same algorithm, thereby continuing the elevation of harmful content — including content that is directly detrimental to the American political process — and that would be acceptable under the law. The same goes for TikTok’s data practices.

Why? Because China — presumably or until the Supreme Court tells us otherwise — does not have a First Amendment right to speak in the United States. Speech isn’t the content, rather speech is the content recommendation algorithm — and right now, the algorithm is the CCP’s.

Now this often causes people to question how is it that TikTok’s content recommendation or data collection is any worse than that of other social media sites. After all, if the content and algorithm can remain the same, how is TikTok a threat to national security through its content recommendations and collection and use of Americans’ data and other, similarly situated companies, are not? Do we really trust American companies more than foreign ones? Well I have an answer for you — but not until Part 3 of this piece. So stay tuned and keep reading!

Part 2: The Case

On January 10, 2025 the Supreme Court of the United States heard oral arguments in TikTok, Inc. v. Garland.6 I want to take a moment and encourage you to visit this YouTube link where you can listen to the oral arguments.7 For Part 2, I am going to provide the opening statements of counsel for TikTok and the government.8 I will also add a few interesting questions and responses related to their arguments. I cannot stress enough how much I would encourage readers to go listen to the oral argument and/or read the transcript. I cannot possibly cover every aspect of the case. The oral argument transcript alone is 191 pages long… So yeah, not happening. Please go listen and read for yourselves!

Here are the opening remarks from Noel Francisco, attorney for TikTok and ByteDance:

“First, TikTok incorporated as a U.S. company speaking in the United States. The Act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a ban or a divestiture, one thing is clear: It's a burden on TikTok's speech, so the First Amendment applies.
Second, the Act is content-based from beginning to end. It applies only to social media platforms that have user-generated content, except for business, product, and travel reviews. Within that content-based universe, it singles out a single speaker for uniquely harsh treatment, and it does so because the government fears that China could, in the future, indirectly pressure TikTok to disseminate foreign misinformation and propaganda.
Finally, the Act can't satisfy any standard of scrutiny. The government has no valid interest in preventing foreign propaganda. And its fall-back that it seeks merely to prevent covertness makes no sense since that could be addressed with a risk disclosure.
The government's real target, rather, is the speech itself, its fear that Americans, even if fully informed, could be persuaded by Chinese misinformation. That, however, is a decision that the First Amendment leaves to the people.
Given that, the government's data security rationale cannot independently sustain the Act. It is also grossly under-inclusive and ignores the most obvious less restrictive alternative: simply banning TikTok, Incorporated, from sharing any sensitive user data with anyone.
In short, this Act should not stand. At a minimum, you should preliminarily enjoin it, which will allow you to carefully consider this momentous issue and, for the reasons explained by the President-Elect, potentially moot the case.”

Now let’s hit a few of the “highlights” of TikTok’s argument.

When asked by Justice Thomas what exactly is TikTok’s speech in this case, Mr. Francisco responded that the algorithm TikTok employs — the very same algorithm that is under direct control and ownership by ByteDance — is TikTok’s speech and therefore places a burden on TikTok because they cannot use their preferred method of speech if forced to undergo a qualified divestiture. It’s apparent in the argument, and has widely been reported in the days leading up to the argument, that ByteDance has no intention of allowing TikTok to divest nor does it have any intention of keeping TikTok active if the law is allowed to stand. Now is a perfect time for this meme I saw on Twitter/X.

How funny is that? I loved it. Anyways, back to the argument.

When asked by Justice Alito if he, Mr. Francisco, would be making the same argument if TikTok was owned directly by the People's Republic of China, Mr. Francisco responded, “I wouldn't be making the same argument, Your Honor. There you would… have to confront a very different question, whether a foreign government that was speaking in the United States has First Amendment rights.” This response, and other parts of the argument, highlighted a back-and-forth about who really controls TikTok.

Yes, TikTok is an “American” company. ByteDance, their parent organization, is a Chinese company under the influence of the CCP. Given what we know about how parent company structures work and considering what we know to be true of how the CCP directs Chinese owned corporations, it is entirely reasonable to conclude that TikTok is an American company in name only. For all practical purposes, TikTok is under the control of the CCP. This is important because as highlighted by Justice Alito, “the Court has never held that a foreign government has free speech rights.”

Now let’s visit Solicitor General, Elizabeth Prelogar’s, opening argument:

“The Chinese government's control of TikTok poses a grave threat to national security. No one disputes that the PRC seeks to undermine U.S. interests by amassing vast quantities of sensitive data about Americans and by engaging in covert influence operations, and no one disputes that the PRC pursues those goals by compelling companies like ByteDance to secretly turn over data and carry out PRC directives.
Those realities mean that the Chinese government could weaponize TikTok at any time to harm the United States. TikTok collects unprecedented amounts of personal data. And, as Justice Sotomayor noted, it's not just about the 170 million American users but also about their non-user contacts, who might not even be engaging with the platform.
That data would be incredibly valuable to the PRC. For years, the Chinese government has sought to build detailed profiles about Americans, where we live and work, who our friends and coworkers are, what our interests are, and what our vices are.
TikTok's immense data set would give the PRC a powerful tool for harassment, recruitment, and espionage. On top of that, the Chinese government's control over TikTok gives it a potent weapon for covert influence operations. And my friends are wrong to suggest that Congress was seeking to suppress specific types of content or specific types of viewpoints.
Instead, the national security harm arises from the very fact of a foreign adversary's capacity to secretly manipulate the platform to advance its geopolitical goals in whatever form that kind of covert operation might take.
The Act addresses the threat of foreign adversary control with laser-like focus. It requires only divestiture of TikTok to prevent Chinese government control, and that divestiture remedy follows a long tradition of barring foreign control of U.S. communications channels and other critical infrastructure.
So, no matter what level of First Amendment scrutiny applies, this Act is valid because it's narrowly tailored to address compelling national security threats.
Now my friend, Mr. Fisher, just emphasized and I acknowledge that millions of Americans enjoy expressing themselves on this platform. But the important thing to recognize is that the Act leaves all of that speech unrestricted once TikTok is freed from foreign adversary control.
The First Amendment does not bar Congress from taking that critical and targeted step to protect our nation's security.”

Now for some highlights from the government’s argument.

When asked about the difference in the government’s position if TikTok was owned by a multinational or American corporation that aimed to use TikTok in all the same ways that the CCP exercises its control over ByteDance, and by extension TikTok, General Prelogar stated:

“[T]his statute is different is because all of the same speech that's happening on TikTok could happen post-divestiture. The Act doesn't regulate that at all. So it's not saying you can't have pro-China speech, you can't have anti-American speech. It's not regulating the algorithm. TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users. All the Act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.”

General Prelogar is highlighting here that TikTok is not the issue, nor is the content shared on TikTok or the algorithm used to recommend that content. The issue is strictly related to the foreign adversary which controls TikTok. Pro-China, anti-American speech can and will continue in a post ByteDance ownership world.

As the arguments continued, Justice Kagan posed an interesting question-set related to TikTok’s algorithm and the “covert” nature of what is really happening behind the curtain. Justice Kagan was ultimately expressing her skepticism of the government’s argument for wanting to fight against one “black box” (i.e., TikTok) but not others (e.g., Twitter/X, Bluesky). General Prelogar, in my view, somewhat faltered on her response here as she admitted the government is concerned that it would not be “apparent” when China is or is not “manipulating” content on TikTok.

This discussion then ramps up as Justice Kagan posed a hypothetical using historical background from the 1950s, when the United States was quite concerned with Communist Party speech. Justice Kagan stated:

“I think you've just given your thing away because content manipulation is a content-based rationale. We think that this foreign government is going to manipulate content in a way that will — that concerns us and may very well affect our national security interests. Well, that's exactly what they thought about Communist Party speech in the 1950s, which was being scripted in large part by international organizations or directly by the Soviet Union.”

General Prelogar made an effort to get out of the content discussion and back to the government’s ideally-believed purpose of the law, which is that “Congress just wants to cut the PRC (i.e., the People’s Republic of China) out of the equation altogether, and all of the same speech could continue to happen on the platform.” She goes on to state:

“It's like patching up a backdoor vulnerability that the PRC has that we can't totally see around all the corners to imagine how it could use it against our interests, but we know the PRC will do whatever it can to try.
And I think that is different in kind from imputing to Congress some motive to specifically get more speech on certain topics or with certain viewpoints. You know, this law was passed by broad bipartisan majorities in both houses of Congress, and our legislatures — our legislators don't always agree on everything. I think it's unlikely that all of them had exactly the same views about what's good content on TikTok or what are good viewpoints. They weren't united on that. What they were united around was the idea that it is a grave threat to our nation if the PRC can itself behind the scenes be controlling how this platform operates.”

Justice Gorsuch also seemed skeptical of the government’s position on stopping the “covert” nature of TikTok in the manner proposed by the government. Earlier in the arguments, prior to the aforementioned quote provided by General Prelogar, Justice Gorsuch stated:

“General, isn't that a pretty paternalistic point of view? I mean, don't we normally assume that the best remedy for problematic speech is counter-speech? And, you know, TikTok says it could even live with a — a disclaimer on its website saying this can be covertly manipulated by China in case anybody were left in doubt after today about that possibility. So you're saying that won't work because?”

General Prelogar dismissed the disclaimer argument rather quickly, stating a disclaimer work not work because of its generalized nature. She offered the hypothetical scenario below:

“[I]magine if you walked into a store and it had a sign that said one of one million products in this store causes cancer. That is not going to put you on notice about what product is actually jeopardizing your health. And I think that's roughly equivalent to the type of disclosure they're contemplating here.”

And she is right in my opinion. Also, I’d like to point out it would be entirely more burdensome on TikTok — and I don’t particularly buy or believe they would be accepting of a disclaimer on their app —to put a generalized disclaimer across the app or on all content on the app. Surely users would grow tired of the redundant and quite frankly annoying disclosure popping up on each video.

As we wrap up this section I again would like to highlight this section has been but a snippet of the content that could have been written. There were many interesting and thought-provoking discussions during oral arguments. I’d encourage readers again to go visit the aforementioned links to listen and/or read the arguments. If you don’t have the ~2 hours to do so, and podcasts are more your speed, then I’d love to highlight this discussion, “What's Next for TikTok?” on the Advisory Opinions podcast.9

With that, let’s get to what you’ve all been waiting for — the dangers of TikTok.

Part 3: The Danger

Earlier on in Part 1 I used the term “similarly situated” to describe TikTok peers (e.g., Instagram) but if I am being honest, in practice that is a misnomer. Why? Because popular American social media sites are under the ownership of American companies. They are not similarly situated where we have American companies (e.g., Meta, Google) answering to American boards and TikTok, on the other hand, answers to ByteDance, which in turn answers to the CCP.

Why does this matter? It matters because Chinese companies are not like American companies. Here in the United States we have separate governing structures for private, public, and quasi-corporate entities. American business practices are governed by their leadership (e.g., boards, executives) and not by government officials. Yes, they follow laws and regulations as they are on the books, but we do not have an American law or regulation that provides the federal government power to control day-to-day actions taken by companies. Want to know who does? China.10

I mean for crying out loud, in the United States, we have Apple making the FBI angry because they won’t assist in unlocking an iPhone. In China, we have ByteDance carrying out the the bidding of CCP by tracking the location of multiple American journalists covering TikTok.11 How did they do that? Oh ya know, just a little bit of accessing their IP addresses and other user data. Nothing major…

170 million Americans use TikTok. Put another way, TikTok has access to 170 million data subjects. This matters far beyond the mere ingestion by Americans of dumbed down dancing videos, comedy sketches, and “day in the life” videos. The content is not the concern here. Our concern should be the underlying data collection taking place, given it is dangerous for both economic and national security reasons — both of which are intertwined. As goes our economic security so goes our national security and vice versa. Consider this scenario from nonresident senior fellow at the American Enterprise Institute, Klon Kitchen:

“Inevitably I’ll get the question, “Why would China want my data? So what if they have my social media videos—I don’t care if they see me flossing.” This is when I launch into my spiel about how it’s about more than just one person’s data, it’s about the comprehensive insights a nation like China can derive when it’s getting troves of personal information from hundreds of millions of Americans. I then typically use my go-to metaphor, where I ask the person to imagine waking up to a news story reporting China has secretly deployed 100 million sensors around the United States and has been clandestinely collecting our personal contacts, photos, GPS locations, online purchasing and viewing habits, and even our keyboard swipes and patterns. I tell them this would obviously cause an uproar and then, feeling very pleased with myself, I lower the boom by telling them this is exactly what is happening every day with the more than 130 million American users of TikTok. Typically, this causes the person I’m chatting with to pause, to admit that my scenario sounds bad, and then, at least half of the time, they say something like, “Well, I mean, everyone else has my data too so I might as well keep having fun.” At this point I thank them for coming to the event and I start thinking about which near-by bar is likely to serve the best old-fashioned.”12

Crazy to think about isn’t it? Truly crazy that we would sit idly by while China is busy harvesting troves of data on American consumers in an effort to satisfy their own economic and security needs at the expense of American economic and national security. And by the way, we are just talking about one method (i.e., TikTok) China has been using to take advantage of American data. If we think more broadly about China’s actions towards American data, it just gets worse. Consider this, also from Klon in the American Foreign Policy Council, Defense Dossier on The Chinese Threat to Privacy:

“[T]he systematic and sustained gathering of intellectual property, proprietary secrets, trade secrets, and other data is critical for China’s economic growth. One in five North American-based companies now say China has stolen their intellectual property. As of 2019, this was projected to have cost the U.S. economy more than $600 billion. Beijing has clearly concluded that its prosperity is best achieved by leveraging that of others.”

As goes our economic security so goes our national security. As these economic measures are taken to weaken the American market and bolster the Chinese economy, we also see the Chinese government become enabled to wield greater weapons in their effort to harm American stability. No, it isn’t about you, the individual watching humorous dancing videos. It’s about us, the collective American demographic and the data — and yes, the secrets — we hold.

The Chinese government has access to 170 million data subjects. Within those 170 million data subjects there are perhaps thousands upon thousands of future military service members. There are perhaps thousands of future lawyers who will hold positions at the Department of Justice or become future Article III Judges. There are perhaps a few hundred future members of Congress and high-level staffers. We could go on and on but I think you get the point. The future leaders of the United States are the current 13-to-30 year olds that are actively using TikTok and by doing so handing their data over to the CCP. What does it look like for our national security when in 10-20 years we have any number of high-ranking government officials at risk of being blackmailed by the CCP?

Think that is outrageous? It’s not the humorous dancing video that is going to be the blackmail. It’s what these users are doing off the app that is the future blackmail. Banking records indicating hush money payments? To who or for what? Obscene and vile search records? What else are you hiding? Researching secluded drug and alcohol rehab facilities? Who has a problem?

I could go on and on but I think you get the point. China is not our friend, they are designated as an adversary for a reason. And while TikTok is a frequent purveyor of anti-American and pro-China rhetoric, often amplifying negative views of American culture and repressing positive outlooks, it will not be our downfall as a society. As Justice Gorsuch mentioned in oral arguments — and I wholeheartedly agree with him — the best way to counter bad speech is with better speech.

At one point in history gold sent people scouring the country (and the world) in search of what seemed like endless wealth (here I am thinking of the old John Wayne movie, North to Alaska). I don’t need to remind or inform anyone about the history or importance of oil, particularly our dependence on it or its impact on our foreign policy rhetoric and decisions. We live in a new age where The world’s most valuable resource is no longer oil, but data.

I don’t doubt the American spirit or out ability to overcome challenges — especially when the challenges we face are embodied in ideas and speech. What causes me great concern — and I hope causes you as a reader great concern — is that we are willingly handing a foreign adversary powerful tools to dismantle our economic and national security. When we hand them our most valuable resource, our data, and allow them to manipulate our society and culture, we lose. Let’s stop losing.

Some of you — many of you I am sure of it — may wish to keep your heads in the sand (your screens) and ignore the reality of what China has done, is doing, and will continue to do. That is your right. And look, I’d like to end this piece with a nice little outro (cue the music) encouraging folks to prove me wrong, but the more I think about it, many of you TikTokers probably won’t reach this point in this piece anyways. I mean come on now, it would take longer than 60 seconds of mindless watching to reach this point. But for those of you that are left, whether you agree or disagree, please feel free to comment and share this post. I have dear friends that love TikTok and think I am just totally lost in the sauce, wholly wrong about everything I’ve posted. I love the dialogue — so let’s talk.

Until next time…

Speech and Content, Algorithms and Data

Does the Chinese government have a First Amendment right to influence Americans?

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