Category: Culture

Your Narrative About TikTok is Probably Wrong (but so what?)

tiktok

One story that trended (e.g., on BlueSky) about TikTok’s day of shutdown and revival can be summarized thus:  the intent to ban TikTok was a stunt cooked up by Republicans so that Trump could pretend to save it at the last minute. Thus, it was never about national security but was yet another grab of another platform for hard-right ideologues—and an opportunity for Trump and/or his friends to benefit financially.

I get why that seems rational, but it doesn’t quite square with the facts. Before describing those facts, however, let’s acknowledge and set aside a few assumptions based on emotion.

First, it is only natural for TikTok account holders to feel angry at the thought of losing a platform they enjoy or use for business or core communications.  When something we like might be taken away as an act of law—let alone a forum used to express oneself or make a living, it feels like an unwarranted attack on one’s interests and civil rights. This remains the unresolved paradox of all social media platforms:  that holding them accountable is perceived by one group or another as an abridgement of the rights of the platform users.

Second, Trump lying is a universal constant. He lies so often that it would be impossible for him not to contradict himself on a broad range of topics. Hence, the fact that he once said “ban TikTok,” then used TikTok for his own purposes, and then claimed to save TikTok is just his standard operating bullshit. “Biden tried to kill it, but I’m going to save it,” is one of a million sound bites or posts (amplified by asshats like Charlie Kirk) that have little to do with what happened or is likely about to happen.

Third, TikTok’s own messaging thanking Trump etc. cannot be taken at face value. The company is acting in its own interests, as any business would. Of course, it was pure theater when the site popped back on and thanked Trump for the 90-day stay of execution while they work out a “deal.” And naturally, many TikTok users will only be glad the platform is still running and either not care or necessarily believe why lawmakers acted in the first place.

The Real Story (most likely)

No later than early 2024, both Democrats and Republicans in Congress were provided security briefings on TikTok and its relationship to the Chinese Communist Party (CCP), an adversary of the United States. Members of both parties were deeply concerned about what they learned, and thus, in early March, the House passed HR 7521 with a vote of 362 to 55. The bill had 54 co-sponsors—22 Democrats and 32 Republicans. After the bill was signed by President Biden, the law set a roughly ten-month deadline for TikTok to be sold to an entity without ties to the CCP to avoid being banned in the U.S.

So, the first point worth making is that if Trump & Co. orchestrated the TikTok law as a stunt, they did it with the cooperation of a lot of Democrats, including President Biden. Instead, it is more reasonable to assume (though admittedly difficult these days) that the TikTok bill was the result of bipartisan cooperation on a matter of national security. Notwithstanding political rhetoric by individual Members—let alone sniping from the edges by Trump—the law itself was well founded, and it is worth noting that the Republicans who supported the law could not be certain that Trump would be re-elected and, therefore, have the opportunity “rescue” TikTok, as alleged.

While I have no more inside information about those security briefings than any other observer, the most rational conclusion is that Congress had good reason to pass the TikTok law, which the Supreme Court—albeit at the 11th hour—unanimously held was not in fatal conflict with the First Amendment. This outcome, which I advocated in an earlier post, does not support the narrative that the ban was a stunt cooked up by Trump and loyal Republicans so that TikTok could be recruited along with Facebook, X, and Google as another social platform of the oligarchy.

Importantly, that narrative misses the point that just because people only lately discovered that Big Tech’s politics are oligarchical, that doesn’t make it news. The sight of Zuckerberg, Musk, Pichai, and Bezos on stage with a mad monarch like Trump was written into Silicon Valley’s Terms of Service a long time ago. TikTok is no different but for the fact that its other anti-democratic master happens to be the CCP.

What Now?

While I endorsed the rationale for the TikTok law, I am acutely aware that even if it were banned on the basis of adversarial foreign control, this would have been a remedy of closing the barn door long after the cows escaped, drowned in the lake, and the lake froze over. The adversarial effects of all social media on American democracy not only remain unaddressed, but Trump & Co. are direct beneficiaries of the kind of targeted propaganda social sites make possible. In other words, whether adversaries of American interests are foreign or domestic, mission accomplished. Chaos sown. You are here.

Just like the social platforms, Trump also disguises his personal interests as American interests, and whatever “deal” he makes to keep TikTok in the U.S. cannot be trusted. “America First,” is an Orwellian slogan—used to animate mean-spiritedness while advocating policy that directly undermines American interests, including national security. Regarding TikTok, then, there is no reason to believe that Trump & Co. give a rat’s ass whether the CCP remains tied to the platform unless that relationship is damaging to Trump & Co. personally—a group that now includes the lately recognized tech oligarchy.

Within that morass, competing narratives will continue to flow based on ideology and emotion—all feeding the social media beast while pretending to tame it. Whatever becomes of TikTok in the next three months, public perception is unlikely to match reality, which paradoxically proves both the utility and futility of the law that was designed to force its sale.

The Information Age Broke the Republic

information age
I recognize the psychological need to believe the American Republic will survive the coming four years, and I freely admit to being the biggest cynic in almost any room. But if the analogy is a shipwreck, we are already treading water with no ship or shore on the horizon. “Democracy lives in the people,” say the more hopeful pundits. Perhaps. But while it may be true that the spirit of personal liberty lives in the people, that is not the same thing as recognizing that the foundations of American democracy were rejected by the people.
 
Tomorrow, a man who showed violent contempt for the Constitution will repeat the oath to protect and defend the Constitution, and the flags decorating the very Capitol he attacked will lead many to think this is still the United States. It is not. Now begins the story of an ersatz America (an Idiots’ Interregnum) where the nation floats unmoored from the rationales for its own existence. The question, therefore, is not survival but revival. Can the Republic be restored after the electorate decides it no longer matters?
 
The first time Trump was elected, I argued that this represented a vote of no confidence in the Republic, and not only would I double down on that assessment today, I believe that same faithlessness has long been evident on the far left and the far right. MAGA claims to defend the Constitution and lies about its meaning while many young Progressives shrug at the Constitution as an anachronism not worth defending. Driving both sentiments is a dangerous level of constitutional illiteracy amplified by the so-called information age and weaponized by masters of the technology. When Madison et al. studied the fates of republics and democracies to learn what makes them fail, they could not have imagined a technology that would one day confound reality itself at the speed of light.
 
It is difficult in any society to distinguish policy from political theater, but the phenomenon is acutely frustrating in a nation this important, where the population knows more mythology than history. Trump personifies that illiteracy—a consequence of both classic illiteracy (i.e., a failure to teach) and cultural illiteracy (i.e., a loss of faith in core principles). In combination, these traits make a mockery of our sacred words, and when Trump takes the oath he already violated, the promise he apes back to the Chief Justice will be purely performative. If the President’s Oath of Office is just for show, whose oath matters? The implications, rippling out to the clerk of the smallest town in the smallest county, are toxic to a nation that was literally invented with words and kept by generations of Americans vesting those words with meaning.
 
The United States has always been a work of paradoxical genius. More than any nation, its identity is an idea expressed in highly intellectual terms securing the right of every citizen to remain blissfully ignorant about the underlying principles of that idea. The First Amendment, the Progress Clause, and the writings of the key founders all express a foresight that upholding the Constitution would require a broad literacy not easily attained by a whole nation. Today, that original paradox is manifest in the fact that immigrants seeking citizenship get better civics educations than most natural born citizens.
 
For the native citizen, we instill constitutional illiteracy at an early age with flashcard concepts that rarely mature as our students do. For instance, the short answer to the 2nd Amendment flashcard has always been “the right to bear arms,” a textual redaction eliding an important national security debate at the founding period that, if taught, would inform a richer understanding of history and the Bill of Rights. This needlessly controversial example begs the question as to whether Americans could ever have achieved core constitutional literacy without condemning that education as either “liberal indoctrination” or “white colonialist values.”
 
Not every American—indeed almost no American—is inclined to spend hours with The Federalist or comb through Elliott’s Debates or deep-dive into the classical education that informed the framers. But basic civics literacy does not require so much academic rigor. A fourth grader can understand, for example, the difference between the state censoring speech and a private party rejecting speech. But in recent years, law school graduates serving in Congress or working at “digital rights” organizations have willfully alleged speech censorship in contexts that are aberrations of the constitutional right.
 
Of course, we Americans often overstate ourselves with words like “patriot” or “traitor” when what we really mean is political agreement or disagreement. Occasionally, an adult steps up, as Senator McCain famously did during the debate with Senator Obama to correct a woman who called Obama a traitor. But that kind of dignity is now either forgotten or scorned. We have thrown open the Overton Window, defenestrated patriots like McCain, Gore, Pence, Liz Cheney, et al. in favor of seditionists, felons, lunatics, and the patently unqualified. And I will die on the hill arguing that the catalyst of this clusterfuck is the information age—not merely driven by profit, but by a mad, narcissistic ideology sold to the public as “freedom.”
 
The words that define and shape the United States are now about as meaningful as the hashtags and memes that have diluted both denotation and connotation in that “sea of irrelevance” called social media. For more than a decade, often “liberal” tech-utopians insisted that a wall of separation protected real life from the “Wild West” of cyberspace, assuring us that the worst aspects of the latter would not have any tangible effect on the former. To say otherwise was to earn the name “Luddite,” and there will be no apology from Big Tech’s evangelicals at EFF et al. A few Silicon Valley refugees offered their mea culpas the first time they noticed the experiment escaping the lab circa 2017, but those voices, like real Republicans, have been marginalized. 
 
Now, the destruction wrought by the information age is holistic. With Senate confirmations of dangerously unqualified political hacks like Hegseth, Bondi et al., the disease of constitutional illiteracy is now its own mandate. Yes, the former GOP (whatever one calls it) is craven and cultish, but it could only have been led there because the idea of American democracy is indeed not alive in quite enough of the people. And because all death is brain death, the idea of America dies when too many people applaud empty slogans like “warrior culture,” rather than engage in adult conversation about what the military, or any department, actually does. This is where the digital revolution has led a great nation.
 
Real life now mirrors cyberspace, where fools become kings. And so, we are a silly, childish nation playing with dangerous toys. America is running with scissors, and the information age that brought us to this moment offers little more than a video clip of the toddler about to impale himself. If there had truly been an information revolution, then Trump would have been the civics lesson America needed instead of the civics test America failed. It was an easy test — i.e., don’t elect people who tried to overthrow the Constitution. But that’s what happened. And the fact that tens of millions of Americans don’t believe, or perhaps don’t care, that it happened is because the information age broke the Republic.

TikTok Boom? A Test Case for Platform Accountability

TikTok

This week, the Supreme Court must decide whether to delay the ban of TikTok in the United States, which is scheduled to take effect on January 19. Signed into law last March, the Protecting Americans from Foreign Adversary Controlled Applications Act was designed to compel owner ByteDance to sell TikTok to a U.S. or other entity with no ties to the Chinese government. But rather than seek a buyer over the last ten months, TikTok has fought the mandate, arguing principally that the “sell or be banned” law violates the First Amendment.

On January 10, the Supreme Court heard oral arguments, and based on comments by various legal observers, it’s a toss-up as to whether the Court will hold that the TikTok law violates the speech right. The Court could also postpone the January 19 deadline on the basis that it declines to issue an important constitutional decision on such a tight timeline. Personally, I am not persuaded that the law implicates the First Amendment because the forced sale targets TikTok as a product and foreign-based operation without regard to the content on the platform. In fact, blurring this distinction is why I believe we have thus far failed to hold social platforms accountable for the content they host, promote, monetize, and manipulate.

Briefs filed on behalf of TikTok include most of the parties with whom I typically disagree on speech and the internet, including the Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Fight for the Future, Cato Institute, and Copia Institute. One argument presented is that even forcing a change in ownership targets the content of the speech on the platform. A similar view was expressed by Dr. Mary Anne Franks during an interview on WPUR. I generally agree on most matters with Dr. Franks, but here, I disagree with the premise that compelling the sale of TikTok is tantamount to targeting the content of the platform or acting as a prior restraint on speech. Further, I worry that if either theory holds, this would only exacerbate the free-speech shell game played by every major social media site determined to avoid either government or self-regulation.

For context, foreign parties are historically prohibited from owning TV or radio networks on the basis that it is a threat to national security to place the tools of mass communication within the reach of foreign powers who might wish to meddle in U.S. policy. If that rationale applies to a mode of communication that merely broadcasts a limited volume of content in a limited manner, the same logic must apply with greater force to social media, which acquires information about its users and can micro-target those users with propaganda from any source in the world. As the brief filed by Professor Zephyr Teachout states:

While 30 years ago it was functionally impossible for foreign governments to engage in local races for Congress, or to track the vulnerabilities of local officials millions of miles away without considerable cost, social media now makes it nearly frictionless for a foreign adversary to engage in hyperlocal politics directly.

The prohibition on foreign parties owning, for instance, American radio stations was never held to be a prior restraint on the speech that would have been communicated by owners who do not have First Amendment rights under U.S. law. This same analysis cannot reasonably be amended on the basis that social platforms (unlike traditional radio or TV stations) reach audiences anywhere in the world, or the fact that TikTok is already used by 170 million Americans exercising their speech rights. So long as the Court finds that the target of the ban/sale law is the design, operation, and foreign influence over the site, it should not be persuaded that the question is a First Amendment issue at all.

As a very simple example, if a publisher distributed children’s books made from toxic materials, any government action to sanction the publisher could not reasonably be held to target the content of the books. And no rational consumer would think otherwise. Likewise, those aspects of TikTok that are toxic to American consumers and/or American interests are considerations separable from the speech rights of either the TikTok entity or its American users.

Finding for TikTok Would Exacerbate Our Social Media Problems

The speech rights of platform users have been cited ad nauseum by Silicon Valley as a rationale to reject government oversight of social media, and this despite the hypocrisy that a user’s speech can be willfully trampled by the platform itself. While Section 230 holds that social platforms are not publishers, they nevertheless act as super-publishers, who manipulate, stifle, amplify, charge fees for, and even ban the speech of users—often without any discernable rationale, and always without transparency or mechanism for appeal that would not astound Kafka himself. (Just last week, a colleague was sent to the Facebook penalty box, and near as we can tell, this was triggered by his posting comments critical of Facebook after the announcement that they would end fact-checking.)

Congress recognizes and yet fails to address the myriad intentional and unintentional hazards caused by social media’s unprecedented capacity to alter world events through data-driven targeting of false and hazardous material. They have yet to hold platforms, including TikTok, accountable for obvious harms like mass copyright infringement, drug-related scams or child suicides caused by algorithms. In this light, the argument that some new owner of TikTok might manipulate speech in a different manner than the current owner (as Musk did after buying Twitter) cannot be a basis for finding that the forced sale is a prior restraint on the speech that might have been expressed by maintaining the status quo. It is an untenable proposition.

The Trump Brief

As if to highlight how preposterous the world is thanks to social media, the TikTok matter is extra sticky at a moment when the American President-reelect demonstrates a hostility to American interests as if he were a foreign adversary. This existential challenge to the Republic is not germane to the First Amendment question before the Court, but the morass is difficult to confront when Trump himself has weaponized the same modes of propaganda that animate the rationale for the ban/sale law in the first place.

Trump is among the amici who filed a brief on behalf of neither party, but which nevertheless supports TikTok by arguing that the Court should postpone the January 19 deadline. The stated reason is classic Trump—namely that he, and he alone, can solve the problem through the art of the deal. Pregnant with self-aggrandized rhetoric, the brief states, “…President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns….”

So, on the basis that Trump is the master negotiator, he argues that the Supreme Court should decline to wade into the “‘unprecedented’ and ‘very significant constitutional questions’” presented by TikTok, at least until he has a chance to work his dealmaking mojo. Surely, the Court cannot fathom what Trump might really intend, let alone resolve the hypocrisy that a con man who owes everything to social media can “save” TikTok while protecting national security. But the Court can, and in my view should, find that the law forcing the TikTok sale does not violate the First Amendment.