TikTok’s Conduct Isn’t Free Speech

It’s a smart approach to an app that poses a unique threat. For years TikTok has assured the public that it keeps U.S. user data outside China and beyond the Communist Party’s reach. A TikTok official stated in 2020 that “the data doesn’t even exist in China."

We soon learned that those assurances were worthless. “Everything is seen in China," a TikTok official said in a leaked recording reported by BuzzFeed. That “everything" is far more than dance videos. TikTok collects reams of sensitive data on U.S. users, including their locations, search and browsing histories, keystroke patterns and biometrics.

TikTok hardly uses this data for benign purposes. ByteDance admitted in December 2022 that some of its employees covertly spied on American journalists while trying to identify internal leakers. Caught red-handed, a spokeswoman chalked this up to a “misguided plan," and TikTok promised to wall off U.S. data. But a January 2024 report in the Journal revealed that staff continued to share data with “colleagues in other parts of the company and with ByteDance workers without going through official channels." Why? Simple. From everything I’ve seen, the Communist Party is in control. Only a structural remedy that requires TikTok to break with China will work.

None of this is unprecedented. The U.S. has long protected our communications infrastructure from unfettered foreign control. The Federal Communications Commission has banned telecom carriers and equipment, including China Mobile and Huawei. And federal law prohibits foreign governments from holding any broadcast license.

Yet as the Senate considers this bill, some argue that requiring TikTok to sever ties with the Communist Party would violate the First Amendment. That isn’t true.

The Supreme Court draws a distinction between laws based on the content of speech and conduct. Laws proscribing the former almost always violate the First Amendment, while those affecting the latter don’t. The House bill falls squarely on the conduct side. It isn’t based on the content of TikTok’s speech or anything its users express. The text specifically concerns TikTok’s actions, which present a serious national-security threat.

The high court’s decision in Arcara v. Cloud Books (1986) resolves the issue. In that case, plaintiffs sought to close a bookstore under a New York state public-health nuisance statute after a sheriff’s investigation found that it was being used for prostitution. The owners objected, arguing that the state couldn’t close the store because the First Amendment protects the sale of books. Yet the court recognized that as sophistry. The underlying statute, it ruled, was permissibly directed at “unlawful conduct having nothing to do with books or other expressive activity."

So too here. The First Amendment doesn’t protect espionage, and the Constitution doesn’t require the government to allow TikTok’s national-security threat to persist simply because the platform also enables speech.

You can use a pen to write salacious anti-American propaganda, and the government can’t censor that content. Nor can it stop Americans from seeking such messages out. But if you use the same pen to pick a lock to steal someone else’s property, the government could prosecute you for illegal conduct.

That is what the House’s TikTok bill has done. It’s consistent with the Constitution’s letter and spirit and our longstanding approach to foreign adversary control.

Mr. Carr is a commissioner of the FCC.