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TikTok creators react to possible US ban, financial impact

U.S. officials. worried the Chinese-owned TikTok is spying on Americans and spreading misinformation, are considering banning the app.

Cody Godwin, USA TODAY

As the choir of lawmakers and national security experts calling for a ban on TikTok grows louder, the social media app has found arare congressionalally in Rep. Jamaal Bowman, D-N.Y. a savvy TikToker himself..

"(TikTok) is a place...where people can express themselves in a way that they see fit," Bowman told USA TODAY. "Banning it is an attack on the people who prefer this platform's freedom of speech."

Republicans and Democrats alike worry the short video site, which is owned by Chinese company ByteDance, could be used by the Chinese government to spy on Americans and spread misinformation. Several bills introduced recently could ban Americans from using the app.

But First Amendment advocates say such bans could run counter to a basic principle of American democracy: free speech.

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A First Amendment right to use TikTok, saidJameel Jaffer,executive director of the Knight First Amendment Institute at Columbia University, "has, I think, not received the kind of attention that it deserves.

TikTok has vocally opposed proposals to ban the app in the U.S., where the company claims it has 150 million active users.

Brooke Oberwetter, a TikTok spokesperson,told USA TODAY that an American ban onTikTok would amount to a "ban on the export of American culture and values to the billion-plus people who use our service worldwide."

Bowman is the most prominent lawmaker to speak out against a ban. He was joined at a press conference Wednesday byReps.Mark Pocan, D-Wisc., and Robert Garcia, D-Calif., who said they supported the message.

Bowman said at the press conferencehe's in favor of privacy and security reforms for social media, but not at the expense of creative expression.

"But we have to uplift freedom of speech and the creativity that so many content creators are bringing to the American people," he said.

The First Amendment protectsfreedom of expressionby prohibiting Congress from restricting the press or any American'sright to speak freely, among other rights.

James Lewis,director of theCenter for Strategic and International Studies' strategic technologies program, told USA TODAY that restricting TikTok content could be construed as censorship.

It seems a little silly to say that a bunch of lip-synching 15-year-olds are protected speech, but it's protected speech," Lewis said.

Both theAmerican Civil Liberties Union and theFoundation for Individual Rights and Expression have urged against a TikTok ban, suggesting the move would raiseserious First Amendment concerns and almost certainly face legal action.

"(A TikTok ban) is going to prevent people across the country from expressing themselves, from communicating with people, from artistic expression within political expression," Jenna Leventoff, senior policy counsel at the ACLU, told USA TODAY."And that is in violation of their First Amendment right to free speech.

Ofcourse, TikTok has grown beyond the singing and dancing that fueled its rise in popularity. A few swipeson the app's For You page could yield educational demonstrations, deeply personal testimonies and oddly edited clips that make little sense to those outside the platform's influence, each interacted with bymillions of viewers.

"(TikTok)allows you to express yourself in a very particular way," Bowman said. "To threaten a ban, or to ban, or to give the president the power to ban (the app), you'rebanning a platform used by 150 million Americans who all operate under the First Amendment, which gives us the freedom to speak."

But not all the app's content is innocuous.The misinformation watchdog NewsGuard said in a September report that TikTok's search results are often riddled with misinformation, findingthat nearly 1 in 5 of the videos automatically suggested by the platform when searching major news topicscontained misinformation.

TikTok creators at Wednesday's press conferenceurged Congress to consider the impact a ban could have on American users.

Callie Goodwin launched her greeting card company,Sparks of Joy Co., on TikTok during theCOVID-19 lockdown in 2020 with the goal ofspreading happiness during a time of sadness and isolation, she said. Since then, she said she has soldmore than 35,000 cards and95% of those orders came from TikTok.

"A TikTok ban wouldn't just put my business at risk; 95% of my livelihood would disappear overnight, along with this entire community of creators and customers that I have built over the platform," she said.

For Tiffany Yu, a disability advocate whose arm wasparalyzed more than 25 years ago as the result of a car accident, TikTok has been a "game changer," allowing her to reach new audiences with her cause.

"A ban takes away the connections we've built, silencing communities that continue to be underrepresented and not given a voice," she said.

But many lawmakers and others say the app endangers national security.

FBI Director Christopher Wray testified in December the agency was concerned about Chinese officials controlling the apps algorithm and argued the app could be used "to collect data through it on users which can be used for traditional espionage operations."

When announcing bipartisan legislation that would allow the commerce secretary to ban TikTok, Sen. John Thune, R-S.D., said that China can't be trusted with American data.

"The Chinese Communist Party has proven over the last few years that itis willing to lie about just about everything," Thune said, introducing the bill alongside Sen. Mark Warner, D-Va."That likely won't end with TikTok, which is why it's important to establish a holistic and methodical approach to the challenges that are posed by technology from foreign adversaries."

The Biden administration, which has signaled support for Warner and Thune's bill, banned the app fromall government-issued devices, as well.

TikTok singled out

Bowman urged Congress to question why TikTok is the only platformbeing scrutinized by Congress while most agree that all social media causes some harm.

"We're isolating TikTok and singling them out," Bowman said in the interview."And they are no worse or better than any of the other social media platforms who have committed blatant, egregious violations in terms of impact on our society and democracy."

Bowman pointed to the Russia's interference in the 2016 election via Facebook, and the mis- and disinformation on all social media platforms that led tothe Jan. 6, 2021 U.S. Capitol attack.

"It's a larger conversation that we have here, and singling out TikTok moves us away from that conversation," he said.

The platform's CEO, Shou Zi Chew, is testifying Thursday inCongress, where he will likely face aggressive questioning from lawmakers on the app's ties to China and handling of private user data.

In Chew's prepared testimony, he says TikTok plans to firewall protectedU.S. user data from unauthorized foreign access,reject manipulation by any government to remain "a platform for free expression" and give access to third-party independent monitors for accountability. He also says the app will continue to prioritize safety for its users, particularly teens.

The legal experts interviewed by USA TODAY agreed that a privacy law addressing data collection would more effectively address the national security concerns raised by lawmakers than a ban while still protecting First Amendment rights.

In his interview with USA TODAY, Bowman indicated support fordata privacy legislation and said his office is"looking at legislation related to the safety and security risk of all social media, and preventing the harm that it causes." But the lawmaker's decision to speak out has less to do with future legislation and more to do with encouraging "broad, nuanced conversations about social media," he said.

"Banning TikTok isn't going to stop the harm that happens in all of social media," he said.

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A US TikTok ban is gaining support in Congress. Why some say that would hurt free speech. - USA TODAY

Hi there, OnPolitics readers!

TikTok CEO Shou Zi Chew is testifying before Congress today as the movement to outright ban the popular social media app over national security concerns continues to grow.

However, First Amendment advocates say a ban like this one could threaten the basic principle of American democracy of free speech.

As Ella Lee reports:

The First Amendment protects freedom of expression by prohibiting Congress from restricting the press or any American's right to speak freely, among other rights.

James Lewis, director of the Center for Strategic and International Studies' strategic technologies program, told USA TODAY that restricting TikTok content could be construed as censorship.

It seems a little silly to say that a bunch of lip-synching 15-year-olds are protected speech, but it's protected speech," Lewis said.

Both the American Civil Liberties Union and the Foundation for Individual Rights and Expression have urged against a TikTok ban, suggesting the move would raise serious First Amendment concerns and almost certainly face legal action.

Keep Reading: A US TikTok ban is gaining support in Congress. Why some say that would hurt free speech.

Stay updated: TikTok CEO Shou Zi Chew testifies before Congress as it floats a ban: Live updates

In case you missed it: 'Foreign technology threats': Commerce secretary could ban TikTok under bipartisan bill

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This article originally appeared on USA TODAY: OnPolitics: Calls for TikTok ban grow, will it threaten free speech?

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OnPolitics: First Amendment advocates concerned TikTok ban could threaten free speech - Yahoo News

Most speech is constitutional, even if it hurts somebodys feelings; or they disagree. But all speech is not permitted.

Paul G. Summers| Guest Columnist

Tennessee Voices: A conversation with Joni Bryan

917 Society Founder Joni Bryan spoke with Tennessean Opinion Editor David Plazas.

Nashville Tennessean

Editor's note:This is a regular feature on issues related to the Constitution and civicswritten by Paul G. Summers,retired judge and state attorney general.

The U.S. Constitution is the supreme law of America. Amendments are part of the Constitution. The first 10 amendments, or Bill of Rights, were submitted to the state legislatures in September 1789. The Bill of Rights was ratified in December 1791.

Our Constitution provides for three separate branches of government: legislative, executive and judicial. The first two are political; the judiciary is not. Judges must be independent, follow the rule of law, and act as checks and balances on abuse of power by other branches.

The Supreme Court ultimately decides whether a law or activity of any of the three branches of government comports with the Constitution. The independence of the third branch is the crown jewel of our democratic republic.

Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment prohibits any governmental interference regarding freedoms of religion; speech; the press; peaceful assembly; and ability to petition our government.

It prohibits any laws that create a national religion or hinders the free exercise of religion, abridge freedom of speech or of the press (media publication). This amendment prohibits any law that interferes with people who peaceably assemble or petition our government over issues or grievances.

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The First Amendment has been interpreted by the Supreme Court as applicable to the federal government and the states, including political subdivisions, pursuant to the Due Process provision of the Fourteenth Amendment.

The First Amendment has limits - particularly if another persons rights might be violated. Although the amendment separates church from the state, there are limits. For example, someone could not injure or harm another even if they claimed such injury was part of my religion.

Likewise, bus transportation for religious schools generally does not violate the Establishment Clause of the First Amendment.

Most speech is constitutional, even if it hurts somebodys feelings; or they disagree. But all speech is not permitted. For example, laws prohibiting actual threats to public officials are forbidden, as in a threat to a federal judge.

Likewise, some pornographic laws are constitutional. Some are not. Finally, it is obvious that one can peaceably assemble or petition the government, but one cannot do it violently. One must use common sense and discretion.

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We live in a free society and make independent decisions, so long as they do not violate the inherent freedoms of others.

In case of doubt or argument, our Supreme Court makes the final decision.

Congress and the President decide on policies and the laws, and the Court decides on constitutionality.

Our Founding Fathers were not only smart, but clairvoyant.

We continue with the Second Amendment in the next article.

Please study your Constitution.

Paul G. Summers, lawyer, is a former appellate and senior judge; district attorney general; and the Attorney General of Tennessee. Raised in Fayette County, Judge Summers resides in Holladay and Nashville.

Originally posted here:
What are the five freedoms in the First Amendment? | Opinion - Tennessean

Religion has permeated human life for thousands of years and archeological evidence exists of religious practices associated with the earliest humans. After the establishment of more organized societies, religion commonly became integrated with government.

A strong connection existed between government and religion in Roman society. In the European Middle Ages, the early Christian church dominated medieval life while the Spanish Inquisition demonstrated a religion-infused government that used torture and execution to eradicate opposition.

Eventually, in Europe, schisms arose between the Catholic Church and emerging Protestants, leading to the Thirty Years War, violence in multiple European countries between religious factions, in England, a years of civil wars that erupted in 1642. Violence was commonly used across centuries to force change from one religion inseparable from government to another religion also inseparable from government.

Efforts to establish and maintain one dominant religion were shattered in 1791 when the Bill of Rights amendments were ratified. The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 1791 ratification of the Bill of Rights created a precedent for separating religion from control of the government, as was common in Europe. But now there are those who want to establish religion in American as a partner of government.

In the context of history, this constitutional text is extraordinary. One of our nations founders, James Madison, wrote in 1822 about the reasons behind the First Amendment:

It was the belief of all sects at one time that the establishment of Religion by law, was right & necessary; that the true religion ought to be established in exclusion of every other; And that the only question to be decided was which was the true religion. . . . We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Gov.

The First Amendments momentous impact is defined by words on the Great Seal of the United States featured on our dollar bills: Novus Ordo Seclorum (A New Order of the Ages).

Unfortunately, there are Americans who choose to ignore the First Amendment. What was once a modest desire by some evangelicals to increase their religions presence has molted into a determined effort to establish religion in America as a partner of government and preferably integrated with government. Their intent to establish a religious kingdom of this world apparently arose because of their fear that the Christianity they preached more than practiced was under attack.

Part of this modern movement to establish an American Religion includes masking it in a blanket of patriotism. This effort is a calculated tactic to disguise violating the First Amendment. The zealots who advance religious patriotism, apparently with weak faith in their religion but strong fear for their religions future, want governments to protect their religion. They seek tax-paid help for their church schools and legislative statutes and court decisions designed to impose their beliefs on the private conduct of life.

Those who engage in religious patriotism, sometimes labeled Christian Nationalists, must believe that America was founded for them and intended for them. Evidently, they believe they are being robbed of that America. They fear tidal changes swirling at their feet and obviously fear that what they consider truth will be overcome by waves of different beliefs. Like many throughout history, they fear changes that time always brings.

Americans are having to adjust to an increasingly non-religious country. Some, unable to adapt quickly, react with anger against those who have different religions, or no religion, or different versions of their religion. They seek support from cynical politicians who promise to help defeat constantly advancing tides of change and who declare that they are tired of separating church and state. Like little children who build sandcastles on a beach at low tide, they are destined for bitter disappointment. The wheels of history do not roll in reverse.

Americans who endeavor to establish a government sanctioned religion would react strongly if Islamic Sharia law was imposed on them. The Afghan Taliban, with its hostility to all other religions but its version of Islam, its exclusion of women from most of Afghan society, and its brutal efforts to dominate Afghanistan using religious law imposed on all, is a modern example of government permeated by religion with insistent belief that it has the one true faith.

Current Iranian society has a Guardian Council of religious elders who vet candidates for office, impose religious rules over dress and conduct, and hold supreme authority over Iranian life. The Iranian Guardians believe they have the true faith. Like the Afghan Taliban and the Iranian Guardians, Christian Nationalists are not shy about proclaiming We know the truth. They are akin to an American Taliban.

The Volunteer State hosts efforts to establish an American religion. Some Tennessee churches label themselves as Patriot churches while others engage in more subtle efforts to gain an advantage for their religion. The current Tennessee legislature enacts legislation with an overt religious component to placate Tennesseans who want guardians for private conduct.

Those who wisely authored the First Amendment helped create a new form of government. The rights enshrined in that Amendment allow each religion to compete in the marketplace of ideas. The role of government is to ensure a level field for all to compete fairly. In the search for truth, some creeds bear good fruit while the harvest sought by others rots in the fields. As was said about two thousand years ago, By their fruits you shall know them.

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Blurred vision: The First Amendment and the American Taliban ... - Tennessee Lookout

William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA's ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it's a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA's side in the District Court.) Here's our Introduction:

The Second Circuit's opinion below gives state officials free rein to financially blacklist their political opponentsfrom gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials "threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with" a controversial speaker, on the ground that disfavored political speech poses a regulable "reputational risk."

It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity's political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute "general backlash" against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.

Reaching this result, the Second Circuit disregards basic pleading standards and undermines fundamental First Amendment freedoms. It also departs from this Court's precedent in Bantam Books, Inc. v. Sullivan and from the Seventh Circuit's precedent in Backpage.com, LLC v. Dart.

This case arises from a series of actionsincluding press releases, official regulatory guidance, and contemporaneous investigations and penaltiesissued by or on behalf of New York's powerful Department of Financial Services ("DFS") against financial institutions doing business with the NRA. Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed "reputational risk" of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo's actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

The NRA brought First Amendment claims against Vullo and Governor Andrew Cuomo in their official and individual capacities. The individual-capacity claimsagainst Vullo, which were the subject of the Second Circuit's decision, withstood two motions to dismiss. But when Vullo appealed the District Court's refusal to grant her qualified immunity at the pleading stage, the Second Circuit held that the NRA's allegations fail to state a First Amendment claim at all.

In effect, the Second Circuit holds that a government official must explicitly threaten adverse consequences for disfavored speechand must do so in the absence of any contemporaneous assertion of a regulatory interestfor a First Amendment retaliation claim to arise. The Second Circuit's opinion thereby creates a circuit split with the Seventh Circuit's decision in Backpage.com, which held that a government official violated the First Amendment in circumstances closely comparable to these.

In addition, the Second Circuit refuses to accept the Complaint's allegation that Vullo clearly and unambiguously threatened insurers in private meetings, and selectively parses Vullo's official communications to disregard key passages and deny NRA the favorable inferences to which it is entitled on a motion to dismiss. The Second Circuit's decision thus defies this Court's command that, in evaluating qualified immunity, "courts must take care not to define a case's 'context' in a manner that imports genuinely disputed factual propositions."

The Second Circuit denudes Vullo's regulatory guidance of the "context" that made it ominous, while importing favorable "context" to frame Vullo's contemporaneous, selective targeting of NRA business associates as benign. "The 'context' here," the Circuit opines, "was an investigation, commenced months before the meetings, that was triggered by a referral from the DA's Office." The Circuit ignores boasts by Vullo's boss, Governor Cuomo, that her regulatory actions were "forcing the NRA into financial jeopardy." And the Second Circuit's suggestion that Vullo had non-retaliatory motives for investigating the insurance policies at issue is rebutted by the facts pleaded in the Complaint.

The Second Circuit goes on to suggest that even if Vullo did make threats, such threats were justified by the "general backlash" against the NRA "and businesses associated with them" which "was intense after the Parkland shooting." Indeed, this backlash "continues today," with many people "speaking out" against the NRA's gun rights advocacy. Such "backlash" against a speaker's viewpoint, the Second Circuit opines, "likely" has financial consequences that would justify financial blacklisting of that speaker for its controversial advocacy.

In support, the Second Circuit cites a "diversity, equity, and inclusion" consultant who charges companies for "consulting packages" to implement "corporate social responsibility" programs, as well as a "survey" commissioned by a marketing company that "strives to insert the brand's social mission and innovations into mainstream conversations through traditional and social media." The reliance on such sources underscores the unsoundness of the opinion below.

This Court has not hesitated to summarily overturn circuit court decisions, like the Second Circuit's, that disregard the applicable pleading standard in determining qualified immunity. Here, the Second Circuit makes the same error as the lower courts in Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239 (2021) (per curiam), Sause v. Bauer, 138 S. Ct. 2561 (2018) (per curiam), and Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam). In all three, this Court summarily reversed because the circuit courts refused to accept well-pleaded facts and draw reasonable inferences in favor of the non-moving party in determining qualified immunity.

The public importance of this case cannot be overstated. A regulatory regimeeven a facially content-neutral onethat "inhibit[s] protected freedoms of expression and association" violates the First Amendment. See NAACP v. Button, 371 U.S. 415, 437-38 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-62 (1958). An overt campaign by state officials to wield regulatory power against a disfavored civil rights organizationhere the NRAprecisely because of its disfavored speech at least as clearly merits this Court's attention and reversal.

Reversal is urgent because the Second Circuit's opinion threatens basic First Amendment rights at a time when the First Amendment is under widespread attack. As the American Civil Liberties Union ("ACLU") has warned, "If the NRA's allegations were deemed insufficient to survive the motion to dismiss, it would set a dangerous precedent for advocacy groups across the political spectrum."

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Cert. Petition on the First Amendment and Coercive Government ... - Reason