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There's a bill scheduled to pass the House today that imposes a $5,000 fine every time someone updates TikTok from a web service you provide. (It's not clear to me whether this only applies if you are providing the hosting "service" to ByteDance in some meaningful way, but if it's not clear in the bill then it isn't clear.)

Isn't this a transparently unconstitutional content-based prior restraint on speech? If the New York Times can't be banned from publishing an article about TikTok on their web site, how could they be able to be banned from publishing TikTok itself on their web site?

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    its worth noting that the proposed "tiktok ban" does not just target tiktok and I think you're correct in suggesting its about tightening media censorship rather than addressing security concerns
    – Alex Robinson
    Commented Mar 13 at 14:11
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    Read the bill. The point of the bill and law is not prior restraint or "media censorship". It is the fact that TikTok is a private, Chinese-owned company; that makes it possible for the US government to ban the company from doing business in the US.
    – BlueDogRanch
    Commented Mar 13 at 15:14
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    What's with the close votes? This is a pretty straightforward legal question.
    – bdb484
    Commented Mar 13 at 16:26
  • @BlueDogRanch so as a person with no business relationship with ByteDance, I can freely distribute the TikTok app to people in the US on my web site or in my app store, without needing to worry about the fines that seem to be specified for doing so? (Assuming ByteDance declined to persue a copyright claim.)
    – interfect
    Commented Mar 13 at 18:48
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    There's precedent for this. The DMCA prohibits using or distributing software whose purpose is to get around copy protection provisions.
    – Barmar
    Commented Mar 13 at 20:59

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Probably

Isn't this a transparently unconstitutional content-based prior restraint on speech?

Nope.

The government is entitled to place reasonable content-neutral restraints on speech, including when, where, and how it can be made.

For example, the government controls the radio frequency spectrum—you can't just set up a transmitter and start broadcasting like a radio station. While they can't ban the New York Times, the New York Times still has to comply with the law, like employment law, tax law, environmental law, etc., and the government could impose fines that might shut them down if they don't comply—it's not a restriction on free speech.

So, assuming the government has a reasonable national security issue with "foreign adversary-controlled applications", restricting their distribution does not unlawfully infringe on free speech. The New York Times can't publish nuclear launch codes, and they can't publish foreign adversary-controlled applications.

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  • What standard is used here to decide if the government has a big enough issue to justify the restriction?
    – interfect
    Commented Mar 14 at 12:48
  • @interfect strict scrutiny
    – Dale M ♦
    Commented Mar 14 at 20:09
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    This is a bonkers First Amendment analysis. As usual, the decision to make random guesses about the law has resulted in numerous misstatements of the law.
    – bdb484
    Commented Nov 26 at 14:16
  • @bdb484 How about you read the Smith-Mundt Act and its 2013 update?! Banning foreign media was the explicit point of it, and the 2013 update only lessened, not totally got away with the restrictions.
    – Trish
    Commented Nov 27 at 12:01
  • @Trish Thank you for the suggestion, but it doesn't really tell us anything about the TPM restrictions DaleM is talking about here.
    – bdb484
    Commented Nov 27 at 19:26

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