Justifying the law to block Americans’ access to TikTok, the government says “national security” is threatened by the Chinese-owned video-sharing app that claims 170 million American users. A bigger threat, however, is the incessant use of that phrase to impart spurious urgency to agendas that are only tangentially, if at all, related to the nation’s safety. Linguistic inflation transforms too many things into “national security” threats.
On Monday, in the U.S. Court of Appeals for the District of Columbia Circuit, TikTok will challenge the law banning it from U.S. app stores. TikTok argues in its brief that the law demands a divestiture (from Chinese ownership) that is technologically and commercially impossible — and unprecedented: “Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act.” Last year, TikTok says, U.S. users uploaded more than 5.5 billion videos that were viewed worldwide more than 13 trillion times. TikTok argues that the ban violates the First Amendment’s free speech guarantee and the guarantee of equal protection of the laws.
Granted, any company beholden to China’s Leninist party-state will do what the Communist Party dictates. But labeling speech (often accurately, regarding TikTok) as foreign propaganda does not license government interference with it. In 1965, the Supreme Court unanimously overturned a law that burdened citizens’ “right to receive” communist propaganda mailed from a foreign adversary.
TikTok also argues that the law violates the Constitution’s takings clause by taking property without just compensation. And that the law, which is punitive, violates the Constitution’s proscription of bills of attainder: legislative punishments of specifically targeted people or groups, which violate the separation of powers.
No Senate committee held hearings or issued a report on the legislation, and Congress enacted no findings to justify treating TikTok differently than other “foreign adversary controlled” apps. A House committee report expressed concern about “misinformation, disinformation, and propaganda.” But government has no legitimate power to protect Americans from what the report calls “divisive narratives.” Or from conjectural harms related to speech that does not lose constitutional protection because the government deems it untrue or unhelpful.
The TikTok law asks us to trust the government that evidently thinks we cannot be trusted to cope with propaganda. Trust the government that tried to suppress as misinformation true criticisms of the government’s pandemic policies? The government that in a 12-month period extending into this election year overstated by 818,000 the number of jobs created during the Biden administration?
Before trusting government’s solemnities about “national security” threats, read Tufts University professor Daniel W. Drezner’s “How Everything Became National Security” in Foreign Affairs. He wrote, “The national security bucket has grown into a trough” capacious enough to contain problems ranging from “food security,” HIV/AIDS, “biologic and genetic dangers,” and “transnational criminal organizations” to “domestic extremism,” “poverty,” “environmental degradation” and certain “supply chains” (e.g., for cobalt and lithium). Drezner warned that “policy entrepreneurs … frame their pet issues as national security concerns” to unlock government resources.
Politicians unleash economic and “national security” nonsense in the service of their demagoguery. The Donald Trump-Kamala Harris consensus encompasses their opposition to allowing a corporation from a close ally (Japan) to purchase U.S. Steel for 40 percent more than its market capitalization, a sale favored by holders of 98 percent of U.S. Steel shares and unopposed by the U.S. military, which uses just 3 percent of domestic steel production.
In the TikTok affair, national security is the excuse for indulging the most dangerous urge: to control speech. In his splendid and alarmingly timely new book, “The Indispensable Right: Free Speech in an Age of Rage,” George Washington University law professor Jonathan Turley correctly wrote U.S. history demonstrates that “anti-free speech impulses rest in the body politic like a dormant virus.” Today, this virus is far from dormant — and not just in the fever swamps of academia.
The free expression of thought is, as Turley wrote, “the essence of being human.” Opposition to it is the essence of bad presidencies.
President John Adams vigorously wielded the Alien and Sedition Acts. President Woodrow Wilson’s wartime authoritarianism suppressed dissent. Kamala Harris would be the third president expressly hostile to free speech: In 2019, she told CNN that speech on social media without “oversight and regulation” by government “has to stop.” Her running mate seems obedient: Tim Walz falsely declares that there is no First Amendment protection for “misinformation.” Presumably, he and she will tell us what this is, in due time.
