Last month, FBI Director Christopher Wray raised concerns about TikTok, the increasingly popular social media app owned by Chinese company ByteDance. Wray is the latest in a long line of government officials who have expressed concern about the influence the Chinese government may have over the app and the national security implications of the data the app collects on American users. As TikTok’s social media presence has grown, lawmakers are increasingly calling for a TikTok ban. But while some regulation of the platform’s data collection practices is presumably necessary to protect national interests, the First Amendment likely prohibits the government from completely banning TikTok nationwide.

Concerns about TikTok are nothing new. In late 2020, former President Donald Trump issued two executive orders purporting to stop Americans from using ByteDance products and WeChat (another popular Chinese social media app), though several courts blocked the rules implementing these directives. President Joe Biden replaced those with a more tailored order purporting to define when foreign apps pose an “unacceptable risk.” Nearly half of states have banned TikTok on state-owned devices, and last month the federal government joined those states. Last week, Sen. Josh Hawley (R-MO) introduced a bill that would ban the app nationwide.

But Sen. Hawley has previously struggled with the First Amendment, and this latest proposal faces similar challenges. In legal terms, this ban would likely be considered a content-neutral speech restriction: It limits one’s ability to speak, but not on the basis of what the speaker intends to say. (These are sometimes called “time, place, and manner” restrictions.) To survive judicial scrutiny, the government must show that the law is “narrowly tailored to serve a significant governmental interest.” In other words, the restriction must (1) further an important governmental interest unrelated to speech and (2) not burden substantially more speech than necessary to achieve that interest.

The 2017 Packingham v. North Carolina decision shows how this test applies in practice. Packingham involved a law prohibiting sex offenders from using social media apps that permit minors to become users. The Court recognized that the purpose of the ban, to protect children from sexual abuse, is unquestionably a significant government interest. Nonetheless, the court unanimously struck down the law because it burdened far more speech than necessary to achieve that interest. The justices explained that social media is where people learn about current events, check employment ads, speak and listen in the “modern public square,” and otherwise communicate with one another. “In sum,” the majority wrote, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

And while Packingham found such a prohibition unconstitutional when applied to sex offenders, Hawley’s bill would apply a similar platform prohibition to all Americans. Like North Carolina’s concern for minors, one can recognize the government has an important interest in preventing TikTok from collecting sensitive data and sharing that data with the Chinese government. In an actual court case, the Justice Department may struggle to find that these concerns are likely and not merely speculative, although that case is easier to establish following revelations that Chinese teams reportedly used the TikTok data of American journalists to identify the source of certain press leaks. The other concern, that China might use TikTok to push Chinese propaganda or misinformation, poses a greater challenge, as it seeks to target specific speech on the basis of content.

But even conceding the important government interest at stake, a national ban burdens far more speech than necessary to achieve that end. A flat ban prohibits all speech on the platform, only a small part of which could possibly constitute Chinese propaganda or generate useful intelligence for the Chinese government. Dance videos, sea shanties, displays of judicial compassion, and millions of other protected messages would be suppressed in the interests of counterespionage—a wider-ranging prohibition than that which Packingham struck down as “unprecedented in the scope of First Amendment speech it burdens.”

Of course, more narrowly tailored bans may survive judicial scrutiny. Bans on TikTok use on government-owned devices, for example, are likely constitutional, as the risk of useful intelligence is greater on such devices, and users remain free to explore TikTok on private devices when off the clock. Similarly, restrictions on how TikTok stores and shares data could address national security concerns without broad speech suppressions.

But TikTok raises a question similar to that presented in privacy debates. The First Amendment protects lots of activity that can be nonetheless affirmatively harmful. In both spheres, the challenge isn’t controlling the flow of data online. The real difficulty is limiting the data available to begin with—for example, by getting people to care about when sharing personal information might unwittingly help a foreign power.

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