An interesting perspective from a professor in Texas.
The bans have come in states where governors, like Texas’s Greg Abbott, have blocked TikTok from state-issued computers and phones. Employers can generally exercise control over how employees use the equipment they issue to them. The move to block TikTok on public university networks, however, crosses a line. It represents a different type of government regulation, one that hinders these institutions’ missions.
The bans limit university researchers’ abilities to learn more about TikTok’s powerful algorithm and data-collection efforts, the very problems officials have cited. Professors will struggle to find ways to educate students about the app as well.
Many, as my students suggested, will simply shift from the campus Wi-Fi to their data plans and resume using TikTok on campus. In this regard, the network bans create inequality, allowing those who can afford better data plans more free expression protections, while failing to address the original problem.
Crucially, TikTok isn’t just a place to learn how to do the griddy. It has more than 200 million users in the U.S., and many of them are exercising free-speech rights to protest and communicate ideas about matters of public concern. When the government singles out one app and blocks it on public university networks, it is picking and choosing who can speak and how they do so. The esteem and perceived value of the speech tool should not factor into whether the government can limit access to it.
The Supreme Court has generally found these types of restrictions unconstitutional. Justices struck down a North Carolina law in 2017 that banned registered sex offenders from using social media. They reasoned, “The Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” Years earlier, the court struck down a law that criminalized digital child pornography. It reasoned lawmakers “may not suppress lawful speech as the means to suppress unlawful speech.”
Nearly a century ago, the first instance in which the Supreme Court struck down a law because it conflicted with the First Amendment came in a case that involved a blanket ban by government officials on a single newspaper. The newspaper was a scourge to its community. It printed falsehoods and damaged people’s reputations. Still, justices reasoned the First Amendment generally does not allow the government to block an information outlet because it threatens the “morals, peace, and good order” of the community.
Each of these laws, while put in place by well-meaning government officials, limited protected expression in their efforts to halt dangerous content. The First Amendment, however, generally doesn’t allow government officials to throw the baby out with the bathwater. Any limitation on expression must only address a clearly stated government interest and nothing else.
So, what is the government interest in blocking TikTok? Perhaps the most coherent statement of TikTok’s perceived national-security threat came from FBI Director Chris Wray in December. He emphasized, because of China’s practice of maintaining influence in the workings of private firms who do business in the country, Chinese officials might manipulate the app’s powerful recommendation algorithm in ways that distort the ideas Americans encounter. American TikTok users might see pro-China messages, for example, while negative information might be blocked. He also averred to TikTok’s ability to collect data on users and create access to information on users’ phones.
The University of Texas’s news release from earlier this week parroted these concerns, noting, “TikTok harvests vast amounts of data from its users’ devices—including when, where and how they conduct internet activity—and offers this trove of potentially sensitive information to the Chinese government.”
These are valid concerns, but apps such as Instagram, Twitter, Snapchat, and YouTube also harvest vast amounts of data about users. Their algorithms do far more than simply supply information. Facebook’s and YouTube’s algorithms, for example, have both been found to encourage right-wing extremism. They are, as Wray and Texas’ news release lamented regarding TikTok, distorting the ideas Americans encounter. Why aren’t we blocking them, too? The obvious answer is that none of these companies are owned by a Chinese firm. But can’t firms such as Meta, Twitter, and Google execute the same harms officials have listed from within the U.S.?
See here and here for the background. The author didn’t say where he teaches, but Google suggests he’s a journalism prof at SMU, which has no compunction to follow suit as it’s a private school. The main thing I took away from this is the possibility that someone at one of these schools, or multiple someones aiming for a class action, could file a First Amendment lawsuit to overturn the bans. The distinction between enacting a workplace ban on (basically) company-owned devices and a more general ban at a university seems clear to me. Whether anyone will take this up or not I couldn’t say – filing a federal lawsuit is no small thing. But it could happen, so we’ll keep an eye out for that.
