Donald Trump, the president said that he wants to ban TikTok. Would such a ban violate the first amendment? If not does he have the power to act via executive order or does it have to go through Congress?
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Tiktok is banned in India but India is a different country...– Number FileAug 1, 2020 at 13:59
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1 Answer
He has that power, as spelled out here, relying primarily on 50 U.S.C. 1701. This executive order already exists, so one path is to simply put Tik Tok on the Commerce Department's entity list. The specific list as of July 22 is here – you can find Huawei already on the list, for example. A First Amendment lawsuit is not likely to succeed, since there is no First Amendment right to directly or indirectly threaten national security, foreign policy, and the US economy (the compelling government interest). The courts will generally defer to the executive branch in its judgment regarding the necessity of a restriction. You could argue (as a proponent of Bytedance's side) that it is only necessary to ban the program on military devices, but the counter-argument is that a less restrictive action is not effective in addressing the compelling governmental interest.
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1There is a 1st Amendment concern here; the right of individuals to run whatever code they want (because a number of decisions say code is speech), and to associate with whom they want (e.g. other TikTok users). Of course government interest may override that, but I don't think it can be dismissed out of hand. Aug 1, 2020 at 17:03
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The 1st Amendment certainly does not let you run whatever code you want. Look at the DMCA. Part of it protects copyright, which is in the Constitution, but part of it makes running code that circumvents digital locks illegal.– OliverAug 1, 2020 at 17:16
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1@PaulJohnson In Bernstein, the Court said encryption software was speech, and could be published. It said nothing about running code. Aug 7, 2020 at 23:57
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1@Justaguy True, but the effect of running code is arguably part of its expression. Imagine if the law allowed the production of a movie but prohibited running it through a projector. While there is no actual precedent on the point, this does not imply that there is no 1stA issue. Aug 8, 2020 at 7:54
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@Oliver You can run the code, its just illegal to use it to circumvent copy protection on a copyrighted work. The DMCA also forbids the distribution of circumvention tools. All this is part of the copyright exception to the 1st Amendment. en.wikipedia.org/wiki/… Aug 8, 2020 at 8:03