TikTok: Commercial Speech, National Security, and Globalization

I recently gave an informal talk to business students at Brigham Young University – Hawaii about TikTok for business. (This previous sentence is brought to you by the wonders of the internet.) While I was able to give some insights on how one might use the platform for advertising and marketing purposes, a good amount of the time was dedicated to talking about the economic/legal saga going on between China and the US. While I had some good jokes about the aggressive strangeness of the TikTok algorithm, I had fewer jokes about this part of the talk. It’s an unusually serious situation for a song-and-dance/comedy app to be embroiled in.

TikTok vs the US (not the real name of any of the legal cases, as far as I am aware) is a case study in the expected and unexpected problems of globalization. While the Biden White House appears to have paused (but not killed) attempts to onshore TikTok, these attempts began with then-President Trump, who tried to strike out at China (and other perceived enemies to his presidency) via legally banning apps unless they were American in some way. It remains to be seen exactly what “American” entails, which is part of the globalization concern.

Early on in the case’s life, I was asked about whether the American government had any case against TikTok that could possibly win. I felt it was unlikely for several legal reasons that have to do with the concepts of commercial speech and free speech.

The speech that TikTok hosts could (potentially) be adjudicated as “commercial speech” in the sense that TikTok’s algorithm is surfacing content in a distinctive way that presents an editorial viewpoint from the company. (“Editorial” action is a critical threshold that moves a platform out of the liability protections of Section 230.) But editorial actions and the (potentially) commercial speech that comes from those editorial actions is still protected in certain ways. The second, third, and fourth points of the commercial speech test created by Central Hudson Gas & Electric v. Public Service Commission (1980) suggest that for the government to legally restrict commercial speech, “the alleged governmental interest in regulating the speech must be substantial,” “the regulation must directly advance the governmental interest asserted,” and “the regulation must not be more extensive than is necessary to serve the interested expressed”.

While the government has argued that security reasons are enough to meet the threshold to stop free speech, they often lose in this situation. For a classic example: Yates v. United States concerned whether members of the Communist Party in America were disallowed from advocating the overthrow of the government. The majority ruled they were not disallowed from expressing this view, as:

“Justice Harlan interpreted [The Smith Act]’s prohibition of advocacy of the violent overthrow of government to mean only ‘‘advocacy of action,’’ not ‘‘advocacy of abstract doctrine or ideas.’’”

“National Security and Freedom of Speech,” USCivilLiberties.org

So you can directly advocate for ideas that go against national security, as long as you aren’t telling people to go physically do something. Case law protects people’s ability to speak against the government, even in ways that sound violent. And TikTok’s commercial speech seems primarily not particularly violent (song-and-dance!), even though it is commercial speech that is theoretically made by an algorithm expressing editorial opinion of a group of people associated with a country that many could (and do) argue is directly antithetical to the existence of the American government.

If you put the two arms of the potential case together (commercial speech and reasons to curtail speech), the United States would have to prove in court that there is a real, ongoing threat to the United States in the communication of the app (not one that is possible, not even one that is merely expressed on the site) and that there are no other ways to redress the problem other than blocking the site (“must not be more extensive than is necessary”). That’s a very high bar. Ultimately, courts have found in favor of TikTok and its users for those reasons: they ruled in favor of commercial activity/speech and did not see the threats to national security as real and ongoing.

Yet other lines of legal action are still active, if paused! There’s a question here about what rights non-American companies have to speak in America. It’s possible that the American government could argue that speech on TikTok is not commercial speech protected by American laws because Chinese companies own/invest in TikTok. This would be an interesting approach, and I am not sure what would happen. The plaintiffs would almost certainly be arguing that their speech is protected speech happening in America (because noncitizens speaking in America still have certain rights), but the government would be arguing that it isn’t. It could come down to the location of servers. Globalization is a difficult problem!

This line of approach would be complicated by the fact that TikTok in some ways wants to leave China and come to the US:

TikTok, which despite being owned by the Chinese internet giant ByteDance has its eye on the U.S. market, went even further than its American rivals. The video app said late Monday it would withdraw from stores in Hong Kong and make it inoperable to users there within a few days. The company has said that managers outside China call the shots on key aspects of its business, including rules about data.

Based on the law, the Hong Kong authorities can dictate the way people around the world talk about the city’s contested politics. A Facebook employee could potentially be arrested in Hong Kong if the company failed to hand over user data on someone based in the United States who Chinese authorities deemed a threat to national security.

In Hong Kong, a Proxy Battle Over Internet Freedom Begins,” Paul Mozur, New York Times.

So Chinese-owned (but American-run) TikTok is leaving a part of China because it is afraid of China’s censorship, much less the US’s. Globalization! It is challenging! And all this over an app that is primarily about jokes, songs, and dances!

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