Texas’s TikTok Ban and the First Amendment

By Carolyn Calder, Vol. 22 Staff Writer

On July 7, 2023, the Coalition for Independent Technology Research filed a law suit against, among others, Governor Greg Abbott of Texas. The complaint argues that the state of Texas acted unconstitutionally and in violation of the First Amendment when it implemented a ban of the social media app TikTok from all state agencies, including public colleges and universities.

For the uninitiated, TikTok is an app where users can share and watch short videos about “virtually every topic under the sun.” The app is owned by a Chinese company called ByteDance, and though the operating company, TikTok, Inc., is itself American, many government officials across the U.S., state and federal both, have expressed fears that TikTok’s Chinese ownership could mean anything from nefarious spying on Americans to the storing and collecting sensitive user data. It is important to note that, thus far, there has been no evidence offered to demonstrate that the Chinese government has ever accessed the personal information of American users of the app.

Texas is far from alone in its decision to ban the social media app – as of early October, more than 2 dozen states have banned TikTok on government-issued devices and many colleges have blocked it from being accessed on campus Wi-Fi networks. One of those states, Montana, actually went further than Texas, when in May its Governor Greg Gianforte, signed a bill to ban the app from operating at all inside the state. In that case, TikTok itself actually filed suit, also claiming a First Amendment violation.

The Coalition’s suit against Texas centers mainly on the educators and researchers who are impacted by the state’s ban of the app. The suit focuses on those individuals based at public universities who are seeking to conduct research into social media, who now are inhibited from using TikTok. Ironically, those scholars are now incapable of studying the very thing that Texas is worried about, such as data collection on the platform.

So, what are the odds that Texas wins this case? That the ban stays in place? And what would that mean for the First Amendment?

Well, the good news for both First Amendment scholars and TikTok lovers alike is that, under existing law, Texas doesn’t have much of a leg to stand on. In a First Amendment analysis, there are two levels of questions that need to be answered. First, we need to ask if what is happening here actually is a violation of the First Amendment. Social media sites are owned by private companies, and thus they can moderate users on their platforms as they see fit, generally without regard to the users’ First Amendment rights. And the government cannot tell social media sites how they should be moderating content on their sites. But, the Coalition’s argument goes, a governmental ban on accessing TikTok would be unconstitutional, because it would be a violation of the First Amendment rights of researchers and scholars who wish to study topics discussed on that app. And this argument seems pretty rock solid – restricting the speech of public university officials would effectively be government censorship.

So, assuming that researchers at public universities have a First Amendment right to research and study, the second question in our analysis would be to ask if the government has a “compelling state interest” that they are trying to achieve. What exactly qualifies something as a compelling state interest? Well, that is a topic that would take more than just a blog post, but suffice to say that something like “national security”, which Texas claims it is trying to achieve here, would probably qualify. But it is not just enough for the Government to point to their compelling state interest and say, “we think that is more important than any personal rights or liberties.” Instead, they need to engage in a balancing test, in which the court weighs, one on hand, the compelling state interest, and on the other hand, any rights that they may be trampling by invoking this law. Here, the question would effectively be: “which is more important to the government? National security or free speech?”

You might be thinking – that is not an easy question to answer! Both of those seem quite important. Fortunately, one requirement for this balancing test is that the Government must ensure that their policy is “narrowly tailored” to meet that compelling interest. If they can’t do so, then they fail the test. For a policy to be narrowly tailored, it must be specifically written to not curtail other rights. Essentially, the policy must be the best way possible for the Government to achieve its goals without being too broad in its reach.

Here, Texas seems to utterly fail the narrowly tailored test. As indicated earlier, China does not at all appear to be a true threat to US data security via TikTok. In letters to state agency leaders, Governor Abbott stated, without citing any sources, that TikTok harvests “vast amounts of data from its users devices” and “offers this trove of potentially sensitive information to the Chinese government.” It is not clear where Texas gets its information from; the State went on to indicate that TikTok employees who are based in China can have access to US data. Ultimately, while maybe having a compelling interest, Texas certainly seems to fail the “narrowly tailored” part of this test. And failing one part of this test would mean that Texas fails the whole analysis. 

Now, despite this indication that Texas has a snowball’s chance in, well, Texas, in this case, it’s still important to ask how a Texas win would impact First Amendment doctrine. If Texas were to win this case, it would likely not be an indication that scholars and researchers do not have First Amendment rights to research topics of their choosing. Public universities and colleges seem to unequivocally fall under First Amendment protection. Therefore, what it would tell us instead is that the government does not need to have a strong justification at all to take down First Amendment rights. If Texas could win with what frankly seems to be a very weakly tailored compelling interest, then that would tell us that the Government does not have to do much work at all to convince a court that they can trample on citizens’ First Amendment rights. Texas winning this case would be a huge blow to the First Amendment doctrine in both college settings and beyond.