“For over a century, restrictions on foreign ownership have been part of the U.S. federal communication policy,” said an American legal scholar.
Following the enactment of the “Sell or Ban” bill targeting the short video social media platform TikTok, supported by both parties in the United States and signed into law by President Biden, TikTok has stated its intention to continue its legal battle. The platform plans to invoke the protection of freedom of speech under the First Amendment of the U.S. Constitution as its resistance weapon.
However, after years of debate, both parties in the U.S. Congress and federal government swiftly reached a consensus in April this year, mandating TikTok and its parent company ByteDance to divest to rid itself of Chinese ownership, or face the consequences of being banned in the U.S. Behind this rapid shift lies a significant reason that will render TikTok’s defense using American freedom of speech legally untenable and cast a gloomy shadow over its future in the United States.
The TikTok debate has been ongoing in the United States for at least four years, from the Trump administration’s attempt to ban TikTok in 2020, which was overturned by the Democratic courts, to March this year when it seemed unlikely for the U.S. government to force the Chinese company ByteDance to sell TikTok to an American company. Congressional legislation targeting a specific company was also rare.
TikTok is popular in the U.S. with 170 million American users. This being an election year in the U.S., both parties had contemplated the potential backlash restricting TikTok might incite among voters.
However, in April this year, a bipartisan TikTok divestment bill swiftly became law – the House of Representatives overwhelmingly passed the bill on April 20 with 360 to 58 votes; the Senate followed suit on the 23rd with a vote of 79 to 18; and on the 24th, President Biden promptly signed it. If TikTok fails to divest from ByteDance within 12 months, it will face a ban in the U.S.
Policy-makers explaining the reasons behind this sudden change mentioned that the TikTok debate is complex, and while some arguments may not necessarily prove forced divestment of an international company is logical, there is at least one issue with TikTok that falls into a unique category.
TikTok has become a significant source of information in the U.S., with about one-third of Americans aged below 30 regularly getting news via the platform. However, TikTok’s ownership lies with a leading global competitor of the U.S., and this competitor – the Communist China – views private enterprises as extensions of the state for governance and control.
“It’s a tool ultimately in the hands of the Chinese government’s control,” FBI Director Christopher Wray described TikTok when testifying before Congress.
Viewing the TikTok issue from these perspectives, it becomes apparent that no country in the world would allow foreign ownership to dominate its news, publishing, and information.
For centuries, U.S. laws have restricted foreign investors from owning American television or radio stations, even those from friendly countries.
Fordham University law professor Zephyr Teachout stated in an article published in The Atlantic in March this year that, “For over a century, restrictions on foreign ownership have been part of the federal communication policy.”
She emphasized, “In this era of globalization and free trade, the idea of preventing foreign investment in tech platforms seems so extreme that it must have a darker explanation, but that intuition is wrong. The concept of guarding against foreign government surveillance and political interference is a very old one rooted in American history and the logic of democratic self-determination – prohibiting hostile foreign powers from controlling major communication platforms upholds the longstanding and crucial tradition of American self-governance.”
Teachout referred to the Constitutional Convention of 1787 during the early days of America, highlighting the deep concern amongst the framers that foreign powers might exploit America’s open society and government for their own benefits. After the Constitution was ratified, the U.S. Congress frequently employed restrictions on foreign ownership and influence to uphold mechanisms for American sovereignty, democracy, and national security, particularly visible in the realms of politics, elections, and communication.
To those who perceive restricting TikTok as anti-globalization, it is essential to note that China has completely blocked major Western information and social media platforms such as Google, X platform (formerly Twitter), Facebook, Instagram, YouTube, and WhatsApp within its borders.
Many Asian countries have also banned or significantly restricted TikTok’s presence within their territories, citing reasons similar to the traditional U.S. legal arguments mentioned above.
While discussions on foreign interference in U.S. elections since 2016 have primarily focused on Russia, experts suggest that the threat posed by the Chinese Communist Party through information manipulation is becoming increasingly alarming.
In recent years, the CCP has intensified its information operations leveraging online social media influence to support its broader goals such as expanding CCP influence, promoting its narratives, seeding doubts about American leadership, and sowing division in American society.
According to reports from two research groups, content on TikTok related to topics the CCP seeks to suppress—such as anti-Communist protests in Hong Kong, the 1989 Chinese democracy movement, and the Tiananmen Square Massacre of ’89—is challenging to find on the platform.
During recent conflicts like the Russia-Ukraine war and the Israel-Hamas conflict, there has been minimal pro-Ukraine and pro-Israel content seen on TikTok.
An analysis by The Wall Street Journal on the Israel-Hamas conflict corroborated the above findings, highlighting evidence that TikTok is promoting anti-Israel content, with the CCP generally aligning itself with Hamas, a terrorist organization. In the Russia-Ukraine conflict, the CCP predominantly sided with Russia.
ByteDance founder Zhang Yiming publicly pledged in 2018 to “strengthen party building” in his company, stating that “technology must be guided by the ‘core socialist values.'”
In a TikTok lawsuit in California in May 2023, a former senior executive of ByteDance revealed that the Beijing headquarters of ByteDance has a special committee comprising CCP members responsible for overseeing “how the company advances the core values of the CCP,” with this committee having “the highest access rights to all company data, including data stored in the U.S.”
Many U.S. lawmakers and national security experts are deeply concerned about these revelations. One of the key proponents of the “Sell or Ban” bill, former Republican Congressman Mike Gallagher, told The New York Times that allowing TikTok, controlled by the CCP, to exist in the U.S. amounts to “ceding control of information – like the information young Americans receive – to America’s most significant adversary.” Democratic federal Congressman Yvette Clarke also believes that CCP ownership of TikTok “poses an unprecedented threat to U.S. security and our democracy.”
Despite the “Sell or Ban” bill becoming formal law, TikTok intends to continue its legal battle, and official Chinese statements suggest ByteDance will not allow TikTok to be sold. They do have some allies in the U.S.
On the political left, organizations like the ACLU argue that the TikTok bill violates the First Amendment protection of freedom of speech. On the political right, Jeff Yass, a TikTok investor and a major Republican campaign donor who was also a former board member of the Cato Institute, now a key defender of TikTok.
These opponents aim to resist using American freedom of speech and TikTok’s popularity among young Americans, but their standing has weakened considerably compared to a few months ago.
Carl Hulse, chief correspondent for The New York Times in Washington DC, remarked, “Concerns that TikTok provides too many avenues for China (CCP) to enter the U.S. seem to outweigh any political concerns.”
Teachout, in her article in The Atlantic, emphasized that defending a communication platform representing the interests of a foreign government using the First Amendment of the U.S. Constitution is “extremely weak” and “unjustifiable.” If banning TikTok equates to limiting its users’ freedom of speech rights, “its limitless logic may swallow any efforts to regulate communication-based tech platforms.”
While restricting TikTok may not address all the issues brought by large tech companies like monopolies and privacy concerns, Teachout believes that forcing TikTok’s divestment can at least address a specific problem – “a hostile foreign superpower controlling a dominant communication platform in America, with ample evidence indicating an interest in influencing domestic politics in the U.S. and other countries.”