It didn’t take Jonathan Haidt’s bestselling book The Anxious Generation to alert us to social media’s pernicious effects on children and teenagers. And it turns out that TikTok, a digital application owned by the Chinese company ByteDance, goes viral in the minds of young people significantly more than Instagram, Facebook, X, and Snapchat — and thus allows our enemies to roil our political culture and otherwise engage in psychological warfare. To give one prominent example, TikTok drove an epidemic of apologias for Osama bin Laden’s manifesto earlier this year.
To its rare credit, Congress has decided to do something about this problem. As part of its recently passed national security and military aid bill, both houses voted by huge majorities to force the Chinese Communist Party to divest itself of its mind-control tool. President Joe Biden signed the measure into law. An earlier version of the bill was proposed by recently resigned Rep. Mike Gallagher (R-WI), unanimously approved by the House select committee on China that he chaired, and then also overwhelmingly passed the House. The legislation would force certain social media companies owned by America’s foes, notably China, Russia, North Korea, and Iran, to find new ownership or lose app store availability within 180 days.
Senate Majority Leader Chuck Schumer (D-NY) had promised action in the upper chamber on that earlier bill, but the momentum from the House’s rare bipartisan moment was slowed by intense lobbying from Big Tech. Platforms that gloried themselves in censorship to foil “misinformation,” or speech the government doesn’t like, have become born-again libertarians, insisting that, if enacted, the legislation would stifle free speech.
This is a phony debate. As disingenuous as tech lobbyists have been, legitimate First Amendment advocates such as the American Civil Liberties Union and the Cato Institute, where I worked for nearly 15 years, are mistaken. The divestiture legislation regulates foreign control of American information platforms, not the expression those platforms allow. As I told my friend Jeff Yass, a billionaire investor in TikTok who’s become the face of the opposition to the bill, those who support this legislation would like nothing more than for him to own the app instead of the Chinese.
Moreover, regulating the ownership of communication channels is nothing new. From the Radio Act of 1912, which forbade foreign ownership of radio stations, to the Federal Communications Commission’s denial last year of China Mobile and China Telecom’s ability to provide telecom services in the United States, foreign control of information has been a subject of significant federal interest. Indeed, FCC rules dating back half a century restrict foreign ownership of media broadcasters, with repeated judicial recognition that such measures are consistent with the First Amendment.
Many critics admit the bill doesn’t restrict the content of speech, but they nevertheless argue that it violates the First Amendment because either TikTok isn’t a national security threat, so the bill is disproportionate, or some alternative measure would address that threat.
But here’s what we know just from public sources: The TikTok app allows the CCP to “control data collection on millions of [American] users” and “technically compromise” their devices should it so choose. That’s so because ByteDance must comply with the CCP’s demands and TikTok is controlled by ByteDance. So it’s no surprise that we’ve already seen TikTok let ByteDance access Americans’ private information and track U.S. journalists who criticize the company. We also know that ByteDance let the CCP inspect TikTok’s internal platform in the lead-up to its 20th Party Congress.
Nor is it true that China can replicate TikTok’s capacity for espionage, covert influence, or other nefarious activities through other means. Having a social media company that’s under the thumb of a hostile power’s intelligence service, with the capacity to access 170 million Americans’ devices, decide what content those Americans see, and extract granular, personal data, is much more effective than licensing data from a broker or otherwise fishing for information needles in the digital ocean. Using TikTok location data to track journalists’ real-time whereabouts is a lot easier if you can just ask for that information.
But doesn’t focusing on TikTok make this a “bill of attainder” that unconstitutionally punishes a particular entity for activities that aren’t otherwise illegal? No, because the divestiture bill doesn’t punish anybody, let alone based on past conduct. Instead, it regulates conduct in a forward-looking manner based on national security concerns, as Congress has successfully done in the past with court approval. Analogies to the invalidation of Montana’s ban on TikTok are similarly inapposite because, again, Congress isn’t seeking to ban TikTok but to change its foreign-adversary ownership, a national security concern that Montana can’t assert as a state.
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Another organization whose free speech bona fides can’t be questioned, the Foundation for Individual Rights and Expression, argues that “all options for a divestiture must be exhausted before the government takes the unprecedented step of banning the platform.” I agree. The Committee on Foreign Investment in the United States ordered TikTok to separate from ByteDance back in 2020, but TikTok has done everything in its power to avoid divestment. The alternatives to divestiture have all been exhausted, so this move is the last best hope, just like four years ago, when CFIUS forced a Chinese company to sell the gay-dating app Grindr.
In short, critics’ arguments get this one exactly backward. If you care about free speech, you should care about whether social media platforms are controlled by a communist dictatorship that’s hellbent on sowing chaos and destroying the freedom that we take for granted. The only way to ensure that Americans, especially young Americans, continue to enjoy their constitutional rights is to ensure that our political culture isn’t eroded by foreign governments through the everyday tools that we use to communicate with one another.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute. He is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and the forthcoming Lawless: The Miseducation of America’s Elites and writes the Shapiro’s Gavel newsletter on Substack.
