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Legal Woes, Constitutional Challenges: The Trouble With TikTok

Eric Goldman, associate dean of research at Santa Clara University School of Law, assesses concerns around the impending TikTok ban or buyout. It faces significant First Amendment challenges, he said.

Pen in hand, a person reviews a social media page with an image of a "For Sale" sign on the TikTok app.
The podcast cover image for this The Future in Context (TFIC) episode features an AI-generated image of a For Sale sign on the TikTok app (DALL-E 3).
Listen to this episode on the player below or subscribe for free on YouTube or the podcast app of your choice — Apple Podcasts, Spotify, Audacy and Audible.

The debate over the potential TikTok ban, or forced sale under recent federal legislation, hinges on significant legal and constitutional challenges. Eight TikTok influencers have already filed a lawsuit, arguing the ban infringes on their First Amendment rights.

Santa Clara University School of Law Associate Dean of Research Eric Goldman joins our Government A to Z, panel, drawing attention to the difficulties the government faces in justifying the ban, noting the lack of publicly available evidence on national security risks and the broader implications for free speech. Goldman suggests that the ban could set a precedent for digital trade barriers, leading to potential international retaliation and exacerbating political distrust among younger Americans. The conversation underscores the complex intersection of technology, law and public policy.

TFIC co-host and Government Technology Staff Writer Ashley Silver along with two colleagues from Governing* — Staff Writer Zina Hutton and Digital Editor Zoe Manzanetti, react to Goldman's analysis in thinking about the future of TikTok in the lives of American users. They discuss the app's unique appeal, question whether its algorithm fosters deeper connections and consider the impact of a ban on users and the political landscape.


Here are the top five takeaways from this episode:

1. Legislative Actions:
  • President Joe Biden signed a bill to ban TikTok if ByteDance, its Chinese owner, doesn't divest within a year.
  • ByteDance has nine months to sell, with a potential three-month extension if it can demonstrate progress.

2. Legal Challenges:
  • Eight TikTok influencers are suing the U.S. government, claiming the ban violates their First Amendment rights.
  • Prior bans by the federal government, states and universities have already restricted TikTok usage on government devices.

3. Constitutional Concerns:
  • Goldman argues the ban faces significant First Amendment challenges, as it affects users’ and the platform’s rights.
  • The lack of public evidence on national security risks weakens the government’s case.

4. Economic and Social Impact:
  • TikTok is a major platform for income and social interaction for millions, raising questions about the fairness of the ban.
  • The ban could set a precedent for future digital trade barriers, affecting international relations.

5. Public Opinion and Political Pressure:
  • Younger generations view the ban as a diversion from more pressing issues like housing and climate change.
  • There’s a concern that a ban could increase distrust in the government, particularly among Gen Z and Alpha.

Related Links to items referenced in the episode:

Our editors used ChatGPT 4.0 to summarize the episode in bullet form to help create the show notes. The main image for this story was created using DALL-E 3.

*Governing and Government Technology are both part of e.Republic.
Paul W. Taylor is the Senior Editor of e.Republic Editorial and of its flagship titles - Government Technology and Governing.
Ashley Silver is a staff writer for <i>Government Technology. </i>She holds an undergraduate degree in journalism from the University of Montevallo and a graduate degree in public relations from Kent State University. Silver is also a published author with a wide range of experience in editing, communications and public relations.