Freedom’s Loss to Security: The TikTok Ban That Was Supposed to Save Our Data

The conflict between security and free speech isn’t new, but TikTok has revived a century-old debate. The app, owned by the Chinese company ByteDance, has faced scrutiny over allegations that it collects user data and is able to share it with the Chinese government. [1] In response, the federal government has argued that TikTok poses a serious national security threat, justifying efforts to either ban the platform or force its divestiture. President Donald Trump attempted to ban TikTok with an executive order in 2020, but the effort was quickly blocked in court. In TikTok Inc. v. Trump, the U.S. District Court for the District of Columbia granted a preliminary injunction, finding that the administration likely exceeded its authority under the International Emergency Economic Powers Act (IEEPA) and that the ban likely violated First Amendment protections. [2] The Biden administration initially reversed this approach but later supported legislation aimed at addressing the national security risks posed by the foreign-owned application. [3] This raised a critical constitutional question about the limits of free speech and the government’s power to regulate platforms under the guise of national security. Yet, the underlying legal conflict transcends politics and touches on the core of constitutional governance: does national security override the fundamental right to free speech, or does the First Amendment stand as a shield even against claims of national security?

The Court’s opinion in TikTok Inc. v. Garland hinges on the government's assertion that TikTok’s data-sharing with China poses a legitimate national security threat. Chief Justice Roberts, writing for the majority, argued that the government’s interest in preventing foreign influence in domestic media outweighed the speech protections implicated by banning a platform with over 150 million U.S. users. [4] The ruling extends the precedent set in Holder v. Humanitarian Law Project (2010), where the Court upheld material support laws that prohibited even speech-related support for foreign terrorist organizations, finding that the government’s national security interest justified the speech restriction. [5] However, this line of reasoning dangerously broadens the scope of permissible speech restrictions under national security grounds.

Historically, the Court has been reluctant to curtail speech in the name of national security unless there was an imminent threat. In New York Times Co. v. United States (1971), often called “the Pentagon Papers,” the Court ruled that the government could not prevent the publication of classified documents without clear evidence that it would cause direct, immediate harm to national security. [6] Justice Black’s opinion famously declared, “The press was to serve the governed, not the governors.” [7] The TikTok ban, by contrast, lacks evidence of immediate harm: there are no concrete findings that ByteDance has shared data with the Chinese government in a manner that directly threatens U.S. security. This sets a troubling precedent where mere potential for harm is sufficient to justify broad censorship.

The First Amendment’s protection of speech extends beyond traditional media to digital platforms and social media. In Reno v. ACLU (1997), the Court struck down portions of the Communications Decency Act that attempted to regulate online content, affirming that internet speech deserves the same constitutional protections as print and broadcast media. [8] The Court reasoned that government efforts to limit content based on the “indecent” nature of speech constituted a content-based restriction, requiring strict scrutiny. [9] By allowing the TikTok ban, the Court has effectively applied a lower standard of scrutiny to speech restrictions when national security is invoked, despite the absence of direct evidence of harm.

Critics of the decision argue that the TikTok ban represents an unprecedented extension of governmental power under national security grounds. In Boyle v. Landry (1971), the Court ruled that a general fear of criminal activity could not justify broad prohibitions on speech or assembly. [10] TikTok’s alleged data-sharing with China represents a similar speculative threat: there is no direct evidence that ByteDance has compromised user data; the company has only shown the theoretical possibility that it could. This resembles the preemptive reasoning rejected in Boyle and stands in tension with the Court’s historical commitment to protecting speech even when national security is at stake.

Justice Jackson’s concurrence in TikTok Inc. v. Garland raises an important counterpoint, arguing that the government’s interest in regulating foreign interference in domestic media aligns with Congress’ authority to regulate commerce and protect national security. Jackson cited United States v. O’Brien (1968), where the Court upheld a law prohibiting the destruction of draft cards as a permissible regulation of conduct, even though it incidentally restricted expressive conduct. [11] The TikTok ban, however, regulates not only the conduct of ByteDance but also the speech of its users: nearly 150 million Americans now face restrictions on their ability to express and consume content on the platform.

The Court’s decision also raises broader economic and political questions. TikTok is not just a social media platform; it’s a commercial powerhouse, generating billions in ad revenue and supporting thousands of content creators. [12] The decision to ban TikTok imposes a trade restriction, raising potential issues under the Commerce Clause and international trade agreements. In Gonzales v. Raich (2005), the Court upheld Congress’ authority to regulate marijuana under the Commerce Clause, reasoning that intrastate activity could have substantial effects on interstate commerce. [13] By banning TikTok, the government has inserted itself into global commerce, limiting the competitive market for social media platforms under the banner of national security. The fact that TikTok’s competitors, including Facebook and Instagram, are U.S.-based companies further underscores the economic dimension of the case.

Moreover, the decision threatens to undermine America’s broader commitment to free expression. The Court’s approach mirrors authoritarian tactics often employed by regimes that restrict access to social media to control political dissent. For instance, Iran and China have long blocked platforms like Twitter, Facebook, and YouTube to suppress opposition movements and limit the public’s access to independent information—tactics widely condemned by international human rights advocates. [14, 15] The ruling opens the door for future censorship: if TikTok can be banned for speculative national security threats, so can any other platform, both domestic or foreign, that challenges the political or economic status quo. This concern is not unfounded; platforms like Twitter and Facebook have faced scrutiny for hosting disinformation and extremist content. [16] If national security becomes a catch-all justification for regulating speech, the government could easily extend this rationale to justify broader censorship of politically inconvenient content. Officials might classify certain activist movements, whistleblowers, or even investigative journalism as potential security threats, using that label to suppress speech without clear evidence or judicial oversight. Over time, this would erode the line between protecting the nation and silencing dissent, opening the door to politically motivated censorship cloaked in the language of safety.

The government’s assertion that TikTok poses a threat to national security also raises questions about the selective application of this reasoning. China’s growing economic dominance and technological advancements pose significant challenges to U.S. economic and geopolitical interests. However, banning TikTok does little to address the underlying structural issues of data security and foreign influence. If the concern is about data privacy, stronger federal data protection laws would be a more direct and effective solution than an outright ban. In Carpenter v. United States (2018), the Supreme Court emphasized the need for legal protections surrounding digital privacy, noting that sweeping measures that infringe on privacy should be carefully scrutinized. [17] Congress’ failure to pass comprehensive data privacy legislation should not be remedied through censorship, as noted in the Court’s focus on maintaining constitutional protections even in the face of national security concerns.

The TikTok decision sets a dangerous precedent where the mere assertion of national security is sufficient to justify restrictions on speech. In Brandenburg v. Ohio (1969), the Court established the “imminent lawless action” test, ruling that speech can only be restricted if it incites or produces imminent illegal activity. [18] The speculative nature of the TikTok threat falls far short of this standard. The Court’s departure from Brandenburg weakens the fundamental principle that speech must be protected unless it poses a direct and immediate threat to public safety.

The Supreme Court’s decision in TikTok Inc. v. Garland reflects a troubling shift in First Amendment jurisprudence. By allowing the government to ban a platform based on speculative threats, the Court has empowered the state to regulate speech under a dangerously broad national security rationale. This ruling not only jeopardizes the future of free expression in the digital age but also sets a precedent for broader governmental control over online discourse. If national security can justify banning TikTok today, it can justify banning other platforms tomorrow. Unless courts, and the public, draw the line now, we risk walking into a future where speech is no longer a right, but a permission granted by the state.

 Edited by Claire Thornhill

[1] Drew Harwell, “A Second TikTok Whistleblower Tells Congress the Company Has Access to U.S. Data,” Washington Post, March 10, 2023, https://www.washingtonpost.com/technology/2023/03/10/tiktok-data-whistleblower-congress-investigators/.

[2] TikTok Inc. v. Trump, 490 F. Supp. 3d 73 (D.D.C. 2020).

[3] Charlie Savage, “Biden Revokes and Replaces Trump Order That Tried to Ban TikTok,” New York Times, June 9, 2021, https://www.nytimes.com/2021/06/09/us/politics/biden-tiktok-ban-trump.html.

[4] TikTok Inc. v. Garland, 24–656 (U.S. 2025).

[5] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

[6] New York Times Co. v. United States, 403 U.S. 713 (1971).

[7] New York Times Co. v. United States, 403 U.S. 713 (1971) (Black, J., concurring).

[8] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

[9] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

[10] Boyle v. Landry, 401 U.S. 77 (1971).

[11] United States v. O’Brien, 391 U.S. 367 (1968).

[12] TikTok, “About TikTok,” accessed June 18, 2025, https://www.tiktok.com/about?lang=en.

[13] Gonzales v. Raich, 545 U.S. 1 (2005).

[14] U.S. Department of State, 2022 Country Reports on Human Rights Practices: China, accessed June 18, 2025, https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/china/.

[15] U.S. Department of State, 2022 Country Reports on Human Rights Practices: Iran, accessed June 18, 2025, https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/iran/.

[16] U.S. House of Representatives, Select Committee to Investigate the January 6th Attack on the United States Capitol: Final Report, 117th Cong., 2nd sess., December 22, 2022, https://www.congress.gov/event/117th-congress/house-event/111407/text.

[17] Carpenter v. United States, 138 S. Ct. 2206 (2018).

[18] Brandenburg v. Ohio, 395 U.S. 444 (1969).