Luckily for free speech and free press in America, Donald Trump, who is set to be sworn in as president on Monday, seems determined to ensure that the many millions of American TikTok users will be able to continue posting and watching videos at the popular social media platform. Hooray for Trump taking this stand. But, previously, Trump was a free speech and free press villain in regard to TikTok. Indeed, if Trump had stood up for First Amendment rights from the beginning instead of taking action against TikTok, the whole United State government effort to ban the social media platform may have been avoided.
The US Supreme Court’s Friday decision in TikTok v. Garland that upholds the US government effort to ban TikTok provides details on Trump’s early history of villainy and the course of action against TikTok that followed. The decision of the court stated:
In August 2020, President Trump issued an Executive Order finding that “the spread in the United States of mobile applications developed and owned by companies in [China] continues to threaten the national security, foreign policy, and economy of the United States.” Exec. Order No. 13942, 3 CFR 412 (2021). President Trump determined that TikTok raised particular concerns, noting that the platform “automatically captures vast swaths of information from its users” and is susceptible to being used to further the interests of the Chinese Government. Ibid. The President invoked his authority under the International Emergency Economic Powers Act (IEEPA), 50 U. S. C. §1701 et seq., and the National Emergencies Act, 50 U. S. C. §1601 et seq., to prohibit certain “transactions” involving ByteDance Ltd. or its subsidiaries, as identified by the Secretary of Commerce. 3 CFR 413. The Secretary published a list of prohibited transactions in September 2020. See 85 Fed. Reg. 60061 (2020). But federal courts enjoined the prohibitions before they took effect, finding that they exceeded the Executive Branch’s authority under IEEPA. See generally TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (DC 2020); Marland v. Trump, 498 F. Supp. 3d 624 (ED Pa. 2020).
Just days after issuing his initial Executive Order, President Trump ordered ByteDance Ltd. to divest all interests and rights in any property “used to enable or support ByteDance’s operation of the TikTok application in the United States,” along with “any data obtained or derived from” U. S. TikTok users. 85 Fed. Reg. 51297. ByteDance Ltd. and TikTok Inc. filed suit in the D. C. Circuit, challenging the constitutionality of the order. In February 2021, the D. C. Circuit placed the case in abeyance to permit the Biden administration to review the matter and to enable the parties to negotiate a non-divestiture remedy that would address the Government’s national security concerns. See Order in TikTok Inc. v. Committee on Foreign Investment, No. 20–1444 (CADC, Feb. 19, 2021). Throughout 2021 and 2022, ByteDance Ltd. negotiated with Executive Branch officials to develop a national security agreement that would resolve those concerns. Executive Branch officials ultimately determined, however, that ByteDance Ltd.’s proposed agreement did not adequately “mitigate the risks posed to U. S. national security interests.” 2 App. 686. Negotiations stalled, and the parties never finalized an agreement.
Against this backdrop, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act. Pub. L. 118–50, div. H, 138 Stat. 955. The Act makes it unlawful for any entity to provide certain services to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States. §2(a)(1). Entities that violate this prohibition are subject to civil enforcement actions and hefty monetary penalties. See §§2(d)(1)(A), (d)(2)(B).
In his first presidential term, Trump started the effort to shut down free speech and free press at TikTok. His executive orders set the course for the succeeding Joe Biden administration to act against TikTok and ultimately for a new law to be enacted that could accomplish banning TikTok and imposing harsh new controls over electronic communication more broadly.
In his impending second presidential term, Trump should be able to quickly defend the ability of TikTok to operate and of Americans to use the social media platform, especially given that the outgoing Biden administration has announced it will not impose a ban in its last days. But, how much credit should we give someone for cleaning up a mess that he played a big role in creating? And what about the further threats to free speech from the Protecting Americans from Foreign Adversary Controlled Applications Act that arose from Trump’s stirring up trouble against TikTok? Will Trump lead a successful effort to repeal that law as well?
