On Monday, three federal judges will consider the constitutionality of the so-called TikTok ban, which will shut off TikTok in the United States beginning in January unless TikTok’s China-based owner sells the platform before then. TikTok is a relatively new technology, but the ban is a reprise of past reactionary efforts to limit Americans from accessing media from abroad. The court should see the ban in that light and strike it down.
Americans tend to associate restrictions on access to foreign media with other governments, not their own. There’s some justification for this. The Soviet Union and China both jammed shortwave transmissions after the Second World War to prevent their citizens from accessing ideas they viewed as subversive. Many rights-abusing regimes engage in similar practices today. After it invaded Ukraine in 2022, Russia blocked access to Facebook, Twitter, and many foreign news outlets. Iran blocks its citizens from accessing a broad array of foreign websites and media sources. So does Saudi Arabia. Autocratic regimes often try to consolidate their own power by restricting their citizens’ access to information and ideas from abroad.
But, as the Knight Institute (which I direct) explained in a brief filed earlier this year, the U.S. government has sometimes imposed these kinds of restrictions, too. When Congress passed the Trading with the Enemy Act in 1917, it gave the president the power to prohibit Americans from purchasing books, films, and periodicals from enemy nations. Over time, the law and its successors were used to bar Americans from receiving books and other expressive materials from, among other places, Vietnam, North Korea, and China. The Treasury Department once ordered postal authorities to seize hundreds of Cuban publications destined for American readers—an order it rescinded only after The Nation and others filed a First Amendment challenge.
A parallel set of restrictions that barred Communists and anarchists from entering the United States similarly became a tool for the broad suppression of disfavored ideas and viewpoints. When Congress enacted these provisions in 1952, President Harry Truman opposed them, describing them as “thought control” and “inconsistent with our democratic ideals.” Congress overrode his veto, but history proved him right. The restrictions were used to exclude a vast array of respected political and cultural figures, including writers like Gabriel Garcia Marquez, Pablo Neruda, Czesław Miłosz, and Doris Lessing, as well as Nino Pasti, a former NATO commander who was banned after he criticized the Reagan administration’s effort to locate nuclear missiles in Europe.
The fundamentally illiberal character of all of these restrictions eventually became impossible for Congress to ignore. The restrictions impoverished public discourse in the United States, undermined the government’s ability to champion free speech abroad, and made the United States seem petty, fearful, and hypocritical at a moment when it was trying to make a case for the superiority of open societies. Congress eventually repealed the immigration provisions that had been used as tools of censorship during the Cold War. In 1988, it passed a law, known as the Berman Amendment, to make clear that the president’s authority to restrict trade with the enemy did not extend to restricting the import or export of expressive materials. It expanded that law in 1994 to protect Americans’ right “to educate themselves about the world by communicating with peoples of other countries.”
The TikTok ban is an unwelcome throwback to an era in which the government exercised far-reaching control over Americans’ access to information and ideas from abroad. Many of the legislators who voted for the ban acknowledged forthrightly that the law was intended to limit Americans from accessing viewpoints with which they, the legislators, disagreed. (Some of these statements are collected at pp. 19-23 of the Knight Institute’s brief.) And while the Justice Department now says the ban is necessary because China might access TikTok’s databases of information about American users, it’s difficult to take the argument seriously when even the Office of the Director of National Intelligence has observed that China can readily access the same kinds of information in other ways, and when Congress could address data-collection concerns more effectively with a privacy law that limited what TikTok and other platforms can collect.
New technology presents new challenges, and perhaps in some contexts these challenges will require Americans to reconsider hard-won freedoms that are, for all of the United States’ profound problems, still the envy of much of the world. But before we permit the government to reinstate long-discredited forms of censorship, we should at least require it to demonstrate that its professed interests—protecting privacy, most significantly—couldn’t be achieved in some other way. The Biden administration hasn’t established that the TikTok ban is actually necessary to achieving any legitimate government interest. Under settled First Amendment standards, that should be the end of the matter.