From the start, the federal attempt to ban TikTok in the United States has been, in my view and those of many others, a deeply misguided effort to censor disfavored content under the pretext of protecting Americans’ privacy and security. I remain convinced that the statute authorizing the ban is an ill-advised and unconstitutional law that does lasting damage to the First Amendment rights of millions of Americans, as well as our standing and credibility abroad. The Supreme Court was wrong to uphold it. But President Trump’s actions to “save TikTok” — through the fiat of an executive order — are poised to do further harm to American public discourse and democracy. His unilateral action is not a victory for free speech. It is an anti-democratic power-grab that extends his influence over the digital public sphere.
How We Got Here
Trump’s actions followed a whirlwind few days for TikTok and its 170 million American users. Last Friday, the Supreme Court unanimously upheld the Protecting Americans from Foreign Adversary Controlled Applications Act, the law that effectively bans TikTok nationwide unless it is sold by its China-based owner ByteDance. The Act effectuates the ban by prohibiting certain service providers from maintaining or distributing TikTok, backed up by steep financial penalties. By Sunday morning, once the deadline set by the Act for divestiture passed, Apple and Google had removed TikTok from their app stores, and American users who still had access to the app were greeted with a message stating that the platform was unavailable.
This set the stage for Trump to play the hero. Later that day, with TikTok effectively shut down to users in the United States, Trump took to Truth Social to announce that he would “issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect” and provide a liability shield to “any company that helped keep TikTok from going dark.” That assurance was apparently enough to convince TikTok and some of its service providers to restore service to American users, although TikTok has remained unavailable on the Apple and Google app stores. In a statement announcing the return of its service, TikTok shamelessly pandered to Trump, crediting him for bringing the app back and calling Trump’s promises a “strong stand for the First Amendment and against arbitrary censorship.”
Trump made good on his pledge on Monday. The executive order instructs his attorney general not to take any action to enforce the Act for 75 days to provide his administration “an opportunity to determine the appropriate course of action with respect to TikTok.” It promises protection from future action against entities in violation of the Act during that 75-day period and the period directly preceding his signing of the order. And it goes the extra step of directing the attorney general to issue letters to service providers “stating that there has been no violation of the statute and that there is no liability for any conduct” that occurred during those times.
The TikTok Executive Order: Rule by Decree
Trump’s executive order shows stunning disrespect for Congress, and the rule of law. It is incompatible with any reasonable reading of the Act. Covered service providers that continue to host and distribute TikTok are plainly in violation of the law. And the Act unambiguously directs the attorney general to pursue enforcement of the law’s penalties against those violating entities. Although the Act provides the president an opportunity to extend the deadline for divestiture for 90 (not 75) days, the executive order does not even claim to draw its authority from that provision. In any event, an extension under the Act is available only if there has been “significant progress” toward divestiture and specific conditions are met. It is not even clear that there is a deadline to extend anymore, as the initial period specified for divestiture has already elapsed.
The order also invokes extraordinary notions of executive power. The reason Trump gave for overriding the statute is that it “interferes with [his] ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect.” And he justified the action based on his “unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions.” This sweeping claim to executive authority is a sign of how Trump intends to run his administration. His message is clear: L’État, c’est moi.
Trump’s Tightening Grip on the Digital Public Sphere
I strongly opposed the TikTok ban on First Amendment grounds. Trump’s order, however, is a lawless assertion of not just executive power, but personal power. Although his statements and actions have so far persuaded some of TikTok’s service providers to continue to distribute the platform in the United States, this is not a triumph for free speech.
It is hard to see Trump’s efforts to “save” TikTok as motivated by a strong commitment to the First Amendment; rather they appear to be aimed at consolidating his power over the digital public sphere. His actions seem to be having that effect. Ahead of Trump’s return to the White House, prominent tech executives rushed to ingratiate themselves with the president. Elon Musk, Jeff Bezos, Mark Zuckerberg, and Sundar Pichai were all given pride of place at Trump’s inauguration. Zuckerberg (who controls Facebook, Instagram, and WhatsApp, among other platforms), in particular, has recently cozied up to Trump: meeting with him at Mar-a-Lago, donating a million dollars to his inauguration fund, and most importantly making significant changes to Facebook’s content moderation practices that appear to cater to the president’s preferences.
Ahead of Monday’s executive order, TikTok unsurprisingly also made brazen overtures to Trump in what appeared to be a desperate attempt to avoid the legal consequences of the statute. In a video posted on the app, TikTok’s CEO Shou Zi Chew publicly heaped praise on Trump, thanking him for his commitment to keeping the platform available in the United States. TikTok helped sponsor a pre-inauguration party celebrating Trump’s most influential social media allies. And TikTok’s messages to its users during its temporary shut-down and return attributed nearly all credit for restoring the service to Trump—all of which gave off strong praise-for-the-Great-Leader energy that would make other U.S. presidents recoil. This is not just theater. It speaks to a rapid accumulation of influence by the president over some of the most important digital platforms in the country.
TikTok, perhaps once the only major social media platform not subject to Trump’s overt sway, is now firmly under the president’s thumb like none other. Trump’s executive order, rather than “saving” TikTok, has effectively granted the president vast decision-making power over the app’s future in the country. TikTok’s availability in the United States may well depend on Trump’s continued satisfaction with the platform, which means that TikTok, in all practical terms, may serve at the president’s pleasure.
The TikTok ban is and always was a bad idea. But Trump has managed to turn the ban and the Supreme Court’s decision upholding it into an opportunity to position himself as a savior of sorts, even as he tightens his hold over the digital public sphere. Given the questionable legal bases for Trump’s actions in trying to override the statute, there is no guarantee that the executive order will stick. But in many ways, the damage has already been done.