Where TikTok stands

As one of his very first actions as president, Donald Trump signed an executive order on Inauguration Day promising to extend a lifeline to the embattled Chinese company ByteDance, owner of TikTok. For the next 75 days, he would direct the Department of Justice to hold off on enforcing a law demanding that ByteDance either divest itself of the social media app or have it banned in the United States. The law’s deadline for divestiture was the previous day.

With his legendary skills as a dealmaker (and now with Elon Musk on his team), President Trump seems determined to use the ban as a bargaining chip to bring the Chinese government to the table. And evidence suggests it’s already working. China, which formerly had insisted that divestment was simply impossible, issued a statement on Jan. 20 declaring its fervent belief in the right of companies like ByteDance to decide any questions of corporate acquisition on their own.

Although President Trump has floated the proposal of having the United States invest directly in TikTok, buying 50% of the company, this would be an unprecedented federal intrusion into communications media. A more likely solution would involve a consortium of private buyers. That said, there is a tangle of legal questions that ByteDance, the U.S. government, and the app stores that host TikTok will have to find a way through first.

The first clause of the executive order reads: “By the authority vested in me as President by the Constitution and the laws of the United States of America it is hereby ordered. …” However, many have pointed out that it is far from clear whether the Constitution or the laws vest the president with such authority.

While the law demanding the sale of TikTok did provide for the possibility of a 90-day extension, the order had to take place before the ban went into effect. Now that the ban has gone into effect, it is the law of the land, and, technically speaking, any company that hosts TikTok content or facilitates access to the app violates federal law and is subject to enormous fines.

At best, President Trump can direct the attorney general to use his prosecutorial discretion to delay any enforcement actions, but companies like Apple and Oracle may decide that is too weak a reed to bet their financial futures upon.

For conservatives, the situation poses some real conundrums. On the one hand, it is almost unprecedented to restrict access to a media platform used by half of all Americans, and many, like Musk, have trumpeted free speech concerns as a reason to keep the app online.

If so, however, it is critical that TikTok be held accountable to operate according to U.S. laws. Until now, it has been able to operate with impunity despite numerous privacy and consumer welfare violations because it cares more about the priorities of its Chinese Communist Party owners than the interests of the American people. If TikTok is to remain available to consumers, it must be run by investors who have the United States’ interests at heart and who can be held accountable for the platform’s many documented abuses. The executive order may succeed in accomplishing that goal.

That said, President Trump is in uncharted waters with this order. The reality is that the terms of the law were very clear. It was passed by overwhelming margins in both houses of Congress, signed by the president into law, and has withstood multiple legal challenges, ending with a rare unanimous Supreme Court verdict that there is no constitutional obstacle to the law.

Elon Musk may tweet his private interpretations of the First Amendment all he wants, but our country should be ruled by courts, not by tweets. Conservatives have often raised a hue and a cry over President Joe Biden’s willingness to resort to executive orders to bypass what he deemed inconvenient acts of Congress and Supreme Court rulings, and what’s good for the goose must be good for the gander. It would be dangerous for President Trump to set a precedent of governing by mere fiat.

Whichever way the TikTok situation settles out, it will be critical for conservatives going forward to articulate a principled basis for regulating technology in the American interest. Hand-waving invocations of “free speech” miss the mark by a mile. Even in the very permissive trends of recent First Amendment jurisprudence, courts have always distinguished between restrictions on the “content” of speech and restrictions on its “time, place, or manner.”

You can’t yell “Fire” in a crowded theater, you can’t set up a heavy-metal concert in a residential neighborhood at midnight, and you can’t put strip clubs near a preschool. And, to stick closer to the case at hand, you can’t sing at a karaoke bar that’s been shut down for health code violations. American citizens are still free to post expressive content on social media—but they should not be able to do so using a platform that violates our laws with impunity.