The U.S. House of Representatives has voted overwhelmingly to require TikTok to divest its Chinese ownership or be banned in the U.S. due to national security concerns.
The security risks identified by the bill’s sponsors include Chinese law which gives Xi Jinping legal access to user data, along with China’s ability to meddle in U.S. elections.
The standard First Amendment debate asks: When does one person’s right to spew misinformation yield to another person’s right not to be harmed by it? But in the context of elections, if Congress interferes with a foreign-owned media platform like TikTok, why should a domestic corporation like Fox News, also guilty of rampant election misinformation, be spared the same scrutiny?
Online disinformation
Over the past few years, the most aggressive online disinformation campaigns in the U.S. have targeted COVID-19 vaccines, climate science and elections. Pew Research shows that 55% of U.S. adults now want the federal government to restrict such false information.
COVID-19 and climate disinformation can be countered relatively easily since death rates, increasing wildfires and disappearing aquifers can’t lie. Election misinformation is another story. Of all the disinformation campaigns online at any given hour, election lies are the most difficult to regulate because political speech is afforded the highest legal protection under the First Amendment.
Paradoxically, political disinformation also presents the greatest threat to the First Amendment and to civil liberties in general. Donald Trump started claiming the 2020 election was rigged months before the first votes were cast. Since then, an initially resistant GOP has begun to embrace the political expediency in parroting his claims: Republicans have not won the popular vote in a presidential election in decades, and it’s easier to decry a “stolen election” than to adjust policies enough to widen the party’s political appeal.
Republicans’ strained relationship with the truth is further complicated by deep-pocket political donors who demand outcomes different from what ordinary voters want, who are willing to finance massive public disinformation campaigns to achieve those outcomes.
As a direct result of widespread election disinformation, 40% of Americans think Trump won the 2020 election, and 64% of election officials say their jobs are now more dangerous. Not only does election misinformation weaken domestic political processes, it has been weaponized by lawmakers on the right to justify new voter suppression laws in a self-serving, closed-loop information feed.
If harm to U.S. elections really is the concern, why should Fox ‘News’ be spared?
TikTok may downplay its interest in U.S. domestic politics, but when it encouraged users to flood U.S. representatives’ offices with angry calls, TikTok demonstrated both its interest and its ability to influence American political outcomes when it wants to.
It’s also evident that TikTok’s algorithms suppress themes that aggravate Chinese leaders. As reported by the New York Times, researchers compiled information about popular TikTok videos on topics commonly suppressed inside China, like the fate of China’s Uyghur population and public protests in Hong Kong. They found the topics underrepresented on TikTok compared to other social networks like Instagram. Evidence of the suppression emerged from TikTok’s own “Creative Center,” and after the under-representation was reported, TikTok quietly reigned in its own research tool rather than address the subterfuge.
As Congress grapples with China’s manipulation of political news, why should domestic manipulation by Fox News be treated differently? Fox News admitted to peddling massive voter disinformation during the last presidential election, leading Dominion Voting Systems to sue Fox — quite successfully — for defamation. Explosive documentary evidence showed that key Fox anchors and executives joked about Trump’s buffoonish stolen election claims, but told their viewers something quite different, leading to an unprecedented, nearly billion dollar settlement.
As instruments of social and political manipulation, TikTok and Fox News target similar audiences. TikTok attracts hormonal teens with addictive homegrown videos, while Fox targets their low-education parents and grandparents. Both outlets manipulate their audience by selling infotainment.
If the TikTok bill makes it through the Senate, it will face stiff legal challenge. Under long-established First Amendment precedent, the government will need to show a compelling government interest, and that forced divestment — or a TikTok ban — represents the least restrictive means of advancing that interest.
Under any legal analysis, there are few concerns more compelling to the U.S. federal government than preserving free elections and the democratic system. What’s glaringly missing from the debate about online disinformation, at least so far, is why election interference from TikTok is any more dangerous than election interference from Fox News.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, Howey Politics, and RawStory. She and her wife split their time between South Florida and Chicago. Follow her on substack.