Brad Littlejohn: Trump’s TikTok gamble

NICK EICHER, HOST: Today is Wednesday, January 29th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

LINDSAY MAST, HOST: And I’m Lindsay Mast. Up next, the future of TikTok.

WORLD Opinions contributor Brad Littlejohn says he’s not so sure about the presidential stay of execution for the Chinese company.

BRAD LITTLEJOHN: As one of his very first actions as President, Donald Trump signed an executive order promising to extend a lifeline to the floundering Chinese company ByteDance: for the next 75 days, he would direct the Department of Justice to hold off on enforcing the ban against TikTok that had gone into effect just the previous day. With his legendary skills as a dealmaker, Trump seems determined to use the ban as a bargaining chip to bring China to the table.

And evidence suggests it’s already working. China, which formerly had insisted that divestment was simply impossible, issued a statement on Monday declaring its fervent belief in the right of companies like ByteDance to decide any questions of corporate acquisition on their own. That said, there are a tangle of legal questions that any buyer would have to navigate first.

The first clause of the EO 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….” But do the Constitution or the laws vest Trump with such authority? While the law did provide for the possibility of a 90-day extension, that would have had to be ordered before the ban went into effect. Now that the ban has gone into effect, any company that hosts TikTok content or facilitates access to the app is technically in violation of federal law and subject to enormous fines—although Trump has directed the Attorney General to withhold prosecution for now.

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 Elon Musk, have trumpeted free speech concerns as a reason to keep the app online.

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. It has demonstrated 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. 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 about the First Amendment all he wants, but our country should be ruled by courts, not by tweets. Conservatives have often complained about President Joe Biden’s use of executive orders to bypass what he deemed inconvenient acts of Congress and Supreme Court rulings. 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 “content” limits and restrictions on its “time, place, or manner.”

You can’t yell “Fire” in a crowded theater. 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.

I’m Brad Littlejohn.

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