Does President Trump’s Ban On TikTok Violate The Constitution?
By Lily Johnson, Skidmore College Class of 2022
August 31, 2020
Celebrities, dancing, music and more! “TikTok gives users a chance to be authentic, creative, and let their hair down. It doesn’t require high-quality photos or video production skills.”[1]With the click of a button, users can upload videos for others to see. The social media platform has become an internet sensation, especially for Gen Z users, holding “100 million US users.”[2] TikTok has provided a glimpse inside American culture.People vocalize their opinions and expressed themselves via TikTok. The world is disposed at users’ fingertips. However, President Donald Trump on August 6th had signed an Executive Order banning TikTok for 45 days. The arising question is whether President Trump’s Executive Order--banning TikTok--can overrule the First Amendment and Fifth Amendment’s Due Process Clause.
President Trump has invoked an Executive Order under the International Economic Powers Act (IEEPA). Besides that an IEEPA “allows President Trump to declare a national emergency,”[3] it also bars information from being “imported or exported.”[4] An IEEPA prevents “‘any transaction’” between a U.S. citizen and TikTok's Beijing-based parent company, ByteDance.”[5]President Trump declared the app a threat to national security.
There is uncertainty of whether TikTok has shared users’ data with the Chinese Communist Party. An Israeli cybersecurity firm found that the app had “allowed attackers to obtain TikTok accounts and manipulate their content, delete videos, make private “hidden” videos public and reveal personal information.”[6] Accounts could be seized after users clicked on links that were provided by the attackers. Hackers could retrieve “personal information.”[7] Since TikTok is owned by Chinese company ByteDance, it is not required to comply with U.S. policies. It must follow China's regulations. “Quartz’s David Carroll researched the company’s privacy policies and found that they indicated that user data could be shared ‘with any member or affiliate of [its] group’ in China.”[8] Nevertheless, TikTok could potentially share data with the Chinese government.
However, TikTok has pushed back. It has “attempted to distance itself from its Beijing-based owners, ByteDance.”[9] TikTok has hired “an American CEO and [has announced] an initiative to bring 10,000 people to the U.S.”[10]According to a source, President Trump’s has lacked solid ground.[11] The Executive order has been “based on pure speculation and conjecture.”[12]TikTok has said that it has patched any privacy issues. The platform has claimed not to have sold users’ data to the Chinese government.
TikTok has filed a lawsuit in the United States District Court Central District of California Western Division, arguing that the Executive Order violates the First Amendment and deprives the app of the Fifth Amendment’s Due Process Clause[13] (which says that the federal government must not deprive anyone“‘of life, liberty or property without due process of law.”’)[14]
[15]
TikTok feels deprived of the Fifth Amendment’s Due Process Clause, because the app has lacked time to respond and rebuttal. Moreover, TikTok has claimed that their First Amendment right has been stifled. The platform has argued their coding is a form of communication, which allows users to vocalize and express themselves via the social media platform freely. President Trump has allegedly overstepped, misperceiving a false threat. Thus, would the district court consider President Trump’s Executive Order as constitutional?
The district court might review the President’s power to create and implement Executive Orders. Article IIof the Constitution does not specifically define an Executive Order. The Presidential power is ambiguous. Judges must interpret President Trump’s Executive Order. Based on Authority To Use Military Force In Libya: Memorandum Opinion For The Attorney General, the Office of Legal Counsel (under the Department of Justice) argued that President Barack Obama’s military strikes in Libya were constitutional. Since the strikes were “limited in nature, scope, and duration,”[16] the Executive Order could be deemed as constitutional. There was a greater risk not to strike.
[17]
And so, President Obama’s successors can draw from precedent set by the memorandum to defend their Executive Orders as being constitutional. President Obama and Trump have both invoked an Executive Order based onthe President's war power. Would the ban be constitutional so long as the Executive order serves the greater good?
Judges might turn to prior Supreme Court cases, such as Schenck v United States. The Court, in Schenck, unanimously upheld that the right to free speech can be overridden given the right context. “The First Amendment may become subject to prohibition” if there is a necessary circumstance calling for “a clear and present danger” test.[18]President Trump’s Executive Order might undergo the “clear and present danger.”[19] If the ban passes, judges might find the Executive Order to be constitutional despite violating the First amendment.
Alternatively, the district court might hold the Executive Order under legal scrutiny for infringing upon the First Amendment and depriving TikTok of the Fifth Amendment’s Due Process Clause.Even if banning TikTok complies with the IEEPA, President Trump “could face legal scrutiny for discriminating against certain speakers or types of speech.”[20] Violating the Fifth and First Amendment are serious matters. In addition to carefully observing the government’s procedures, judges might discern President Trump’s reasons for banning TikTok.There might or might not be a compelling enough interest to override either amendment.
Assuming that the ban takes hold, Gen Z might wonder what America would look like without TikTok. Even though TikTok communities would no longer exist, American users’ could migrate to other social media platforms. But there is much to be decided. Walmart, Microsoft and Oracle Corp in the bidding pool of buying TikTok.[21] Buying TikTok could help either company connect with more young people. However, if all deals fall through, TikTok has still filed a lawsuit against President Trump. Only time will tell whether President Trump’s Executive was constitutional.
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Aaronson, Susan A. “Recent US Policy Responses Appear Protectionist.” Data Is Dangerous: Comparing the Risks That the United States, Canada and Germany See in Data Troves, April 1, 2020, 15–17. http://www.jstor.com/stable/resrep24303.1.
Allyn, Bobby. “TikTok To Sue Trump Administration Over Ban, As Soon As Tuesday.” NPR. NPR, August 8, 2020. https://www.npr.org/2020/08/08/900394707/tiktok-to-sue-trump-administration-over-ban-as-soon-as-tuesday.
Bauman, Sheri. Political Cyberbullying: Perpetrators and Targets of a New Digital Aggression. Santa Barbara, CA: Praeger, 2019.
Bergman, Ronen, Sheera Frenkel, and Raymond Zhong. “Major TikTok Security Flaws Found.” The New York Times. The New York Times Company, January 8, 2020. https://www.nytimes.com/2020/01/08/technology/tiktok-security-flaws.html.
Brewster, Jack. “TikTok Responds To Trump: 'We're Not Planning On Going Anywhere'.” Forbes. Forbes Media, August 1, 2020. https://www.forbes.com/sites/jackbrewster/2020/08/01/tiktok-responds-to-trump-were-not-planning-on-going-anywhere/.
Cullins, Ashley. “TikTok to Trump: Ban Violates Due Process and ‘We Simply Have No Choice’ But to Sue.” The Hollywood Reporter. The Hollywood Reporter, August 24, 2020. https://www.hollywoodreporter.com/thr-esq/tiktok-trump-ban-violates-due-process-first-amendment-1306760.
Department of Justice, Authority To Use Military Force In Libya: Memorandum Opinion For The Attorney General § (2011). https://fas.org/irp/agency/doj/olc/libya.pdf.
Doffman, Zak. “TikTok Caught Breaking Google Rules To Secretly Track Android Users-Report.” Forbes. Forbes Media, August 12, 2020. https://www.forbes.com/sites/zakdoffman/2020/08/12/tiktok-google-android-breaking-rules-secretly-track-android-users/.
“Due Process.” Legal Information Institute. Legal Information Institute. Accessed August 29, 2020. https://www.law.cornell.edu/wex/due_process.
Feyissa, Solan. TikTok. Photograph. Flickr. SmugMug Flickr., August 1, 2020. https://www.flickr.com/photos/solen-feyissa/50179272367.
Hamilton, Alexander, Federalist No. 70 § (1787). https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493456.
“I Set up a TikTok House: a Trump Ban Would Be a Huge Blow to Teenagers | Timothy Armoo.” The Guardian. Guardian News and Media, August 11, 2020. https://www.theguardian.com/commentisfree/2020/aug/11/tiktok-house-donald-trump-ban-teenagers-china-social-media.
Kumar, Uday Sampath. “Walmart Wants to Go Viral with TikTok, Wall Street Thinks It Can.” Reuters. Reuters, August 28, 2020. https://www.reuters.com/article/us-walmart-tiktok/walmart-wants-to-go-viral-with-tiktok-wall-street-thinks-it-can-idUSKBN25O28F.
Press, Associated. “TikTok and Its US Employees Set to Sue Trump Administration over Ban.” New York Post. NYP Holdings, August 13, 2020. https://nypost.com/2020/08/13/tiktok-us-employees-set-to-sue-trump-administration-over-ban/.
Robertson, Adi. “The Big Legal Questions behind Trump's TikTok and WeChat Bans.” The Verge. Vox Media, August 10, 2020. https://www.theverge.com/2020/8/10/21358505/trump-tiktok-wechat-tencent-bytedance-china-ban-executive-order-legal-sanctions-rules.
Schenck v. United States, 249 U.S. 47 (1919), Justia (Supreme Court 1919). https://supreme.justia.com/cases/federal/us/249/47/#tab-opinion-1928047
Sonnemaker, Tyler, and Leskin Paige. “Trump's Attempt to Ban TikTok and WeChat Could Face Legal Trouble for Infringing on Free Speech, According to a First Amendment Expert.” Business Insider. Insider, August 7, 2020. https://www.businessinsider.com/trumps-tiktok-and-wechat-bans-could-violate-first-amendment-expert-2020-8.
THROnline. “TikTok Complaint.” Scribd. Scribd, August 24, 2020. https://www.scribd.com/document/473491411/TikTok-Complaint.
Wingard, Jason. “The TikTok Invasion: Massive Success, Massive Mistakes, Massive Risks.” Forbes. Forbes Media, December 6, 2019. https://www.forbes.com/sites/jasonwingard/2019/12/06/the-tiktok-invasion--massive-success-massive-mistakes-massive-risks/.
Wu, Tim. “A TikTok Ban Is Overdue.” The New York Times. The New York Times, August 18, 2020. https://www.nytimes.com/2020/08/18/opinion/tiktok-wechat-ban-trump.html.
[1] “I Set up a TikTok House: a Trump Ban Would Be a Huge Blow to Teenagers | Timothy Armoo.” The Guardian. Guardian News and Media, August 11, 2020. https://www.theguardian.com/commentisfree/2020/aug/11/tiktok-house-donald-trump-ban-teenagers-china-social-media.
[2] Press, Associated. “TikTok and Its US Employees Set to Sue Trump Administration over Ban.” New York Post. NYP Holdings, August 13, 2020. https://nypost.com/2020/08/13/tiktok-us-employees-set-to-sue-trump-administration-over-ban/.
[3]Sonnemaker, Tyler, and Leskin Paige. “Trump's Attempt to Ban TikTok and WeChat Could Face Legal Trouble for Infringing on Free Speech, According to a First Amendment Expert.” Business Insider. Insider, August 7, 2020. https://www.businessinsider.com/trumps-tiktok-and-wechat-bans-could-violate-first-amendment-expert-2020-8.
[4] Robertson, Adi. “The Big Legal Questions behind Trump's TikTok and WeChat Bans.” The Verge. Vox Media, August 10, 2020. https://www.theverge.com/2020/8/10/21358505/trump-tiktok-wechat-tencent-bytedance-china-ban-executive-order-legal-sanctions-rules.
[5] Allyn, Bobby. “TikTok To Sue Trump Administration Over Ban, As Soon As Tuesday.” NPR. NPR, August 8, 2020. https://www.npr.org/2020/08/08/900394707/tiktok-to-sue-trump-administration-over-ban-as-soon-as-tuesday.
[6] Aaronson, Susan A. “Recent US Policy Responses Appear Protectionist.” Data Is Dangerous: Comparing the Risks That the United States, Canada and Germany See in Data Troves, April 1, 2020, 15–17. http://www.jstor.com/stable/resrep24303.1.
[7] Bergman, Ronen, Sheera Frenkel, and Raymond Zhong. “Major TikTok Security Flaws Found.” The New York Times. The New York Times Company, January 8, 2020. https://www.nytimes.com/2020/01/08/technology/tiktok-security-flaws.html.
[8] Aaronson, Susan A. “Recent US Policy Responses Appear Protectionist.” Data Is Dangerous: Comparing the Risks That the United States, Canada and Germany See in Data Troves, April 1, 2020, 15–17. http://www.jstor.com/stable/resrep24303.1.
[9] Brewster, Jack. “TikTok Responds To Trump: 'We're Not Planning On Going Anywhere'.” Forbes. Forbes Media, August 1, 2020. https://www.forbes.com/sites/jackbrewster/2020/08/01/tiktok-responds-to-trump-were-not-planning-on-going-anywhere/.
[10] Brewster, Jack. “TikTok Responds To Trump: 'We're Not Planning On Going Anywhere'.” Forbes. Forbes Media, August 1, 2020. https://www.forbes.com/sites/jackbrewster/2020/08/01/tiktok-responds-to-trump-were-not-planning-on-going-anywhere/.
[11] Allyn, Bobby. “TikTok To Sue Trump Administration Over Ban, As Soon As Tuesday.” NPR. NPR, August 8, 2020. https://www.npr.org/2020/08/08/900394707/tiktok-to-sue-trump-administration-over-ban-as-soon-as-tuesday.
[12] Allyn, Bobby. “TikTok To Sue Trump Administration Over Ban, As Soon As Tuesday.” NPR. NPR, August 8, 2020. https://www.npr.org/2020/08/08/900394707/tiktok-to-sue-trump-administration-over-ban-as-soon-as-tuesday.
[13]Cullins, Ashley. “TikTok to Trump: Ban Violates Due Process and ‘We Simply Have No Choice’ But to Sue.” The Hollywood Reporter. The Hollywood Reporter, August 24, 2020. https://www.hollywoodreporter.com/thr-esq/tiktok-trump-ban-violates-due-process-first-amendment-1306760.
[14] “Due Process.” Legal Information Institute. Legal Information Institute. Accessed August 29, 2020. https://www.law.cornell.edu/wex/due_process.
[15]THROnline. “TikTok Complaint.” Scribd. Scribd, August 24, 2020.https://www.scribd.com/document/473491411/TikTok-Complaint.
[16] Department of Justice, Authority to use military force in Libya: memorandum opinion for the Attorney General § (2011). https://fas.org/irp/agency/doj/olc/libya.pdf.
[17]THROnline. “TikTok Complaint.” Scribd. Scribd, August 24, 2020.https://www.scribd.com/document/473491411/TikTok-Complaint.
[18] Schenck v. United States, 249 U.S. 47 (1919), Justia (Supreme Court 1919). https://supreme.justia.com/cases/federal/us/249/47/#tab-opinion-1928047
[19] Schenck v. United States, 249 U.S. 47 (1919), Justia (Supreme Court 1919). https://supreme.justia.com/cases/federal/us/249/47/#tab-opinion-1928047
[20]Sonnemaker, Tyler, and Leskin Paige. “Trump's Attempt to Ban TikTok and WeChat Could Face Legal Trouble for Infringing on Free Speech, According to a First Amendment Expert.” Business Insider. Insider, August 7, 2020. https://www.businessinsider.com/trumps-tiktok-and-wechat-bans-could-violate-first-amendment-expert-2020-8.
[21] Kumar, Uday Sampath. “Walmart Wants to Go Viral with TikTok, Wall Street Thinks It Can.” Reuters. Reuters, August 28, 2020. https://www.reuters.com/article/us-walmart-tiktok/walmart-wants-to-go-viral-with-tiktok-wall-street-thinks-it-can-idUSKBN25O28F.
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