The First Amendment won't protect TikTok. But it doesn't need to.
An overlooked legal argument against banning TikTok.
First thing’s first: Here’s a link to the text of the bill itself, for my reference and for yours:
https://www.congress.gov/bill/118th-congress/house-bill/7521/text?s=1&r=1
Why not the First?
A ban from Congress on TikTok would not be a violation of the First Amendment. The First Amendment to the Constitution of the United States declares that “Congress shall make no law… abridging freedom of speech.” This bill would not abridge free speech. Banning TikTok would not limit what any American can or cannot speak; it would only eliminate one platform for where we can speak, and a privately-held platform at that. Importantly, the rise of Shorts on YouTube and Reels on Instagram and Facebook would mean that similar platforms to TikTok would continue to exist, undercutting the notion that banning TikTok would restrict any sort of speech unique to the platform.
It’s especially difficult to defend a ban of TikTok on free speech grounds when the platform has its own (perfectly legal) set of content moderation policies and content promotion algorithms — in other words, when speech on TikTok was never free to begin with. Hate speech, for instance, is prohibited on TikTok, despite generally being considered protected under the First Amendment. Again, as a private entity, TikTok is perfectly within its rights to have and enforce these policies. But given that these rules are stricter than what Congress is held to under the First Amendment, it would be a stretch, in my opinion, to argue that the First Amendment still blesses the continued existence of this platform.
It would be a violation of the First Amendment if, say, Congress prohibited Americans from speaking out in support of TikTok (something many are loudly doing, freely), or if it required that TikTok only allowed content favorable to a certain political party or ideology (something it does seem to be doing already, also freely). These would abridge the right to freedom of speech, but a wholesale ban on the platform would not.
So, a TikTok ban should survive a challenge on First Amendment grounds. Are there any legal challenges to the ban that could hold water?
Bill of Attainder
This feels like the weirdest argument to make, but I actually think it could be the most compelling. The ban on TikTok could be considered an unconstitutional bill of attainder for the way, both in legislative intent and in the actual text of the bill, it singles out specific corporations and applies a punishment to them without any further judicial process.
What is it?
A bill of attainder is an act of legislation that specifically incriminates or punishes someone without any sort of trial — a law that declares someone guilty because the law says so. Law professor Aaron H. Caplan writes, “A bill of attainder is a law imposing punishment on identified individuals without judicial trial,” and “bills of attainder specify people to be punished without any further procedures” (both p. 1211).
This is, obviously, bad. Such a law would run entirely counter to just about everything we believe as a nation. James Madison, in Federalist No. 44, wrote that bills of attainder “are contrary to the first principles of the social compact, and to every principle of sound legislation.”
Fortunately for us, and because of the work of Madison and company, bills of attainder are prohibited by the Constitution, both for Congress (Article I Section 9) and the states (Article I Section 10). We the people believe in justice against certain acts and behaviors, but not against specific people for no other reason than their existence or our politics.
Importantly, the “punishment” assessed by a bill of attainder does not need to be imprisonment or execution. The Supreme Court, in United States v. Lovett, overturned a law that prohibited the payment of salaries to three specific employees of the federal government who had been suspected of engaging in “subversive” activities, on the grounds that this law was a bill of attainder. In Ex parte Garland, SCOTUS ruled that a prohibition against former Confederate officials practicing law in federal courts was also an unlawful bill of attainder, punishing specific past conduct by an act of Congress.
Would this ban count?
It certainly could. The bill, just passed by the House today, and supported by President Biden, singles out TikTok and their parent company ByteDance Ltd. as needing to sell their enterprise to an organization not affiliated with a foreign adversary government or otherwise have access to the app restricted in the U.S. The same would go for any apps and ownership companies controlled by a foreign adversary determined by a President to present a national security threat. Currently, America’s foreign adversaries are defined as North Korea, Iran, Russia, and China.
So, this bill singles out a specific enterprise and calls for a punishment against it, namely the surrender of that enterprise, absent a judicial process. Would this make the ban against it a bill of attainder?
To answer this, we need to look at a number of questions about rights. First, does the bill of attainder principle apply to companies — do corporations have the right to be treated as persons? The doctrine of corporate personhood is a controversial one, but one that the Supreme Court showed it was willing to uphold in Citizens United v. FEC. As unpopular as that decision may have been, it set an important precedent that businesses, at least in some ways, are entitled to be treated like people, and ought not to have their rights stripped away by federal statute. Thus, it could be argued that laws singling out corporations, which this TikTok ban explicitly does, can be viewed as bills of attainder.
Do individuals have the right to enterprise, to pursue a personal profit — and conversely, would a legislative restriction against that right comprise a bill of attainder? The Garland decision would seem to suggest so, ruling that the restriction of personal income (or even a potential means of earning personal income) from a public or private source — Garland, from what I can tell, was hoping to operate under his own legal practice, to be able to argue cases in federal court but not for the United States — is a restricted punishment that would render a law to be a bill of attainder. While it isn’t enumerated in the Constitution, the right to the pursuit of happiness is famously lauded by the Declaration of Independence and, while this certainly goes beyond seeking financial gain, the right to do one’s best to make a comfortable living, to be free from unreasonable government interference while pursuing that end, is an important one in American society.1 So, this right seems to be understood to be held by individual persons, and thus could be extended to apply to corporations under certain interpretations.
Do foreign companies have this right to enterprise in the United States? This is a much tougher nut to crack. In Alliance for Open Society II (2020), the Supreme Court asserted that “foreign organizations operating abroad do not possess constitutional rights.” Does this apply to foreign organizations operating domestically? If ByteDance doesn’t have the right to ply their trade in the U.S., does that mean this ban would not be a bill of attainder after all? And what about all of the American citizens working for this enterprise? Their livelihoods would be indirectly affected by a ban on their employer, even if that employer is foreign-owned. And that is to say nothing of the millions of users who are able to earn income from their content on and sales through TikTok. Should they be considered in this discussion? I don’t have answers for all of these questions, but if there was to be a counter-argument to the bill of attainder challenge, I think this could be the strongest one.
And even if TikTok and ByteDance were found to have constitutional protections, those protections could be overruled for certain other considerations. One standard of judicial review for acts and actions that seem to impinge on a constitutional right is that of strict scrutiny. Under strict scrutiny, a law is by default considered unconstitutional unless the government can positively prove that the law (1) is necessary to achieve a “compelling state interest,” (2) is “narrowly tailored” so as to achieve that interest with the least possible collateral damage, and (3) uses the “least restrictive means” to go about achieving that interest. Proponents of the TikTok ban could argue that the national security threat posed by China necessitates the removal or divesture of TikTok as a compelling state interest, and that offering the out of a qualified divesture as opposed to jumping straight to a ban means that the bill uses the least restrictive means possible (or, at least, less restrictive means than they could have done). But, at the same time, an even less restrictive means would be to increase regulation of TikTok and the data it collects, rather than forcing the company to shut down entirely, and the adverse economic effects of a ban on TikTok employees and users could stand as a point against the “narrowly tailored” standard.
Importantly, what sort of precedent would this ban set? In Springfield, MA, there’s a plant for CRRC, a Chinese state-owned manufacturer of rolling stock (i.e. trains). Note, this is not a private company based in China with ties to the Chinese government, which TikTok is; CRRC is a company explicitly owned by the Chinese state that operates within the U.S.
This plant provides jobs for the people of Springfield, and much-needed trains for Boston’s MBTA, which desperately needs modernization and new stock, as well as metro systems in LA and Greater Philadelphia. If TikTok can be banned, will companies like CRRC be next?
And what about anti-competition laws? As mentioned above, Meta and YouTube have a major competitor in TikTok for dominance in the content space. Would the removal of TikTok create a harmful duopoly between these two tech giants?
We may just have to find out
Even if this ban can get through the Senate, it is expected to face legal challenges. Most (if not all) of the discussion I’ve seen around these potential challenges have related to free speech and First Amendment rights. I don’t believe these are the strongest arguments that one could make against the ban. The bill of attainder principle is not one often cited in American jurisprudence. But immunity from frontier justice via legislation is foundational to our nation, written in as an inherent right into the Constitution itself, even before the Bill of Rights was passed. It is not a foolproof argument, and it may not stand up before the Supreme Court (especially given that I am not in any way trained or educated as a lawyer). But if those concerned with the rights of businesses to go about their business are looking for a case to make against banning TikTok, the bill of attainder principle just might be their best shot.
Of course, the history of our country has demonstrated time and again that this right is not always respected equally among persons of different races, sexes, backgrounds, etc. But if we are to bring about changes to these systemic issues, we will have to operate under the norms we should have been operating under from the start.