The fight against TikTok

Nearly 30 million teens log two or more hours per day on the TikTok social media platform, with almost 17 million of them averaging more than three hours, the Minnesota attorney general warned in a lawsuit filed last week.

The state argues that the social media giant has created a dangerously addictive platform that harms youth, creating a “habitual dependence” that exploits children in the pursuit of profit. It accuses the app of operating like a slot machine to keep children “mindlessly and impulsively” using the platform.

Minnesota joins a wave of states taking legal action against the app. Free speech experts, though, contend that the lawsuit won’t pass constitutional muster due to First Amendment protections.

State Attorney General Keith Ellison said he hopes Minnesota’s suit will push TikTok to “clean up their act.”

“This isn’t about free speech. I’m sure they’re going to holler that,” Ellison said at a news conference. “It’s actually about deception, manipulation, misrepresentation. This is about a company knowing the dangers and the dangerous effects of its product but making and taking no steps to mitigate those harms or inform users of the risks.”

The suit, filed in Hennepin County District Court, argues that excessive use of TikTok can negatively affect the development of children’s brains. It specifically pointed to harms for the amygdala, which is responsible for emotional processing, and the prefrontal cortex, which manages decision-making.

“This stuff is digital nicotine,” Ellison said. “Just like Big Tobacco designs its products to addict, TikTok is working to create TikTok addicts—and the worst part is, it’s working.”

Minnesota asserts that TikTok use can increase children’s risk of depression, anxiety, and suicide ideation. According to a 2019 JAMA Psychiatry study cited by the suit, teens who spend more than three hours a day on social media may face a heightened risk for mental health problems.

The lawsuit also alleges that TikTok’s livestreaming service has enabled predators to exploit young users sexually and financially.

According to the suit, TikTok has violated several Minnesota laws, including the Prevention of Consumer Fraud Act, the Deceptive Trade Practices Act, and the Money Transmitter Act. Minnesota seeks a declaration that the social media site’s practices are deceptive and unfair under state law, along with a permanent injunction against those practices.

TikTok spokesperson Nathaniel Brown said that the lawsuit is based on “misleading and inaccurate claims that fail to recognize the robust safety measures TikTok has voluntarily implemented to support the well-being of our community.”

Minnesota’s suit comes after 13 states and the District of Columbia filed similar cases against the Chinese-owned app last year. Many states filed their earlier complaints in response to a nationwide investigation into TikTok that more than a dozen state attorneys general launched in 2022. Ellison told the Associated Press that Minnesota conducted a separate investigation.

Christian Edmonds, an assistant professor of law at Regent University, said the suit raises serious constitutional questions. He acknowledged that social media is concerningly addictive, especially for teens, but he added that Minnesota will likely not receive the permanent injunction it seeks.

“Sometimes the end is good, but the means [to the end] bump up against the First Amendment,” Edmonds said. “That is frustrating, but that is how our system works.”

Minnesota contends that TikTok’s algorithm and videos are conduct that falls under consumer protection laws. But Edmonds expects TikTok will argue that the way it runs its platforms is expressive speech that is protected by the concept of editorial judgment.

Social media platforms have the right to decide what content to include or remove and how to display it, similar to newspapers’ right to decide how to organize articles. Edmonds pointed to the 2024 Supreme Court case Moody v. NetChoice, when the Supreme Court emphasized that the First Amendment protects the editorial discretion of these sites.

“[Courts] have said algorithms and how they rank things and place things—that basically is a modern-day example of editorial discretion,” Edmonds said. “This just fits right within that. They’re going to argue, ‘This is speech, and it is part of our editorial discretion. Therefore, you can’t touch it.’”

In North Carolina, a trial court rejected the editorial discretion defense in a case against TikTok last week. Instead, the judge ruled the state’s deception argument was justified because the app misled users about its safety.

Ari Cohn, an attorney at the Foundation for Individual Rights and Expression, contended that the government has no legitimate argument in these cases.

He said that states are essentially trying to regulate content, which the First Amendment doesn’t allow. He added that all content platforms, from books to television to newspapers, vie for our attention, and the government doesn’t have the authority to control the latest tools of content management.

“These features are designed to keep people’s eyeballs and attention. That is the entire purpose of media in general, regardless of which form of media, … to keep people reading, viewing, watching, coming back more,” Cohn said. “Just because it happens through a piece of computer code that an engineer wrote for the purpose of doing that, rather than a person laying out items on a newspaper doesn’t make it any less expressive.”