The latest U.S. TikTok ban attempt faces the same issues as before: Popular opinion and free speech

U.S. lawmakers are trying to ban TikTok again. A new bipartisan House bill, entitled the “Protecting Americans from Foreign Adversary Controlled Applications Act,” or PAFACAA (I thought these names were supposed to be catchy), would set up various roadblocks to TikTok's operating unless parent company ByteDance sells the thing.

As China has repeatedly made clear as far back as former President Donald Trump's abortive attempt to force a TikTok sale, that divestiture isn't going to happen—Beijing would block any sale. So this is a clear attempt to kick TikTok out of the U.S.

There are a couple big problems with this plan, which we’ll get to in a minute. But first, let’s marvel at the hyperbole in the statement accompanying the bill’s introduction. Mike Gallagher (R-Wis.), chair of the House Select Committee on the Chinese Communist Party, said: “This is my message to TikTok: break up with the Chinese Communist Party or lose access to your American users.” Rep. Jake Auchincloss (D-Mass.): “Social media corporations are attention-fracking American youth and corroding our democracy.” Rep. Josh Gottheimer (D-N.J.): “It’s time we fight back against TikTok’s information invasion against America’s families.”

The most overwrought quote comes from House Republican Conference Chair Elise Stefanik: “TikTok is Communist Chinese malware that is poisoning the minds of our next generation and giving the CCP unfettered access to troves of Americans’ data…From proliferating videos on how to cross our border illegally to supporting Osama Bin Laden’s Letter to America, Communist China is using TikTok as a tool to spread dangerous propaganda that undermines American national security. We cannot allow the CCP to continue to harness this digital weapon.”

For all this talk of protecting American kids, the fact remains that, last year, a third of American adults told Pew Research they use TikTok, up from 21% just two years previously. That’s a sharp trajectory. Demographically speaking, the research showed particularly enthusiastic uptake among 18- to 29-year-olds (62%), Hispanic adults (49%), and women (40% usage vs. 25% for men). And, as Pew reported separately last month, the roughly half of U.S. adult users who post videos to the service are pretty evenly split between the two parties.

So here’s the first big problem: This is an election year, in case anyone needs reminding, and voters may not take kindly to candidates who try to ban one of their favorite apps—or, for many, an app that accounts for their income. Yet more Pew research last fall (Pew really likes polling people about TikTok) showed plummeting support for a federal ban on the app, and fears of blowback from younger voters also reportedly helped stall Congressional efforts to ban TikTok last year.

While precious few members of Congress actually have official TikTok accounts themselves, President Joe Biden’s reelection campaign is now on there, as is the Democratic Party. Which makes it slightly amusing to see a White House National Security Council spokesperson tell Reuters that the new bill is ”an important and welcome step,” and that the Biden administration will help “to further strengthen this legislation and put it on the strongest possible legal footing.”

And that’s the second big problem: constitutionality. Don’t forget that the state of Montana was supposed to have a TikTok ban in place on Jan. 1, but a federal judge blocked it for its likely incompatibility with the First Amendment. The authors of this new bill argue that it wouldn’t regulate speech because it is “focused entirely on foreign adversary control—not the content of speech being shared,” but TikTok’s response claims it will “trample the First Amendment rights of 170 million Americans,” and the American Civil Liberties Union is on board with that argument.

“We’re deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year,” said ACLU senior policy counsel Jenna Leventoff in a statement. “Just because the bill sponsors claim that banning TikTok isn’t about suppressing speech, there’s no denying that it would do just that. We strongly urge legislators to vote no on this unconstitutional bill.”

On the other hand, the Republican FCC commissioner Brendan Carr argues that Supreme Court precedent would allow a TikTok ban on the basis that the platform’s conduct—specifically espionage—rather than its content is illegal. That’s an interesting argument, but, given the political dangers of pushing this bill through Congress in an election year, I have my doubts about whether we’ll see the Supreme Court being forced to consider the First Amendment implications of a TikTok ban anytime soon.

More news below.

David Meyer

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This story was originally featured on Fortune.com