The Foreign Influence of Social Media and the Ghosts of McCarthyism

In early 2024, the U.S. Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (“PAFACA” or “the Act”), which requires the video-sharing platform TikTok either be divested from its foreign parent corporation (ByteDance) or face a nationwide ban.[1] This congressional measure marks the first time that a chamber of Congress has passed a bill that could ban a social media platform due to national security concerns.[2] In 2023, Montana passed a first-in-the-nation statewide ban of the app, before a federal court recently blocked its implementation.[3]  Thirty-nine states also ban TikTok from government-issued devices.[4] Importantly, the rise of restrictions on foreign-owned social media has coincided with the return of great power competition, primarily between the U.S. and China (“P.R.C.”).[5] While the recent spate of restrictions on foreign social media is perhaps a harbinger of a new era of technology protectionism, there are also concerns that this great power rivalry will be the basis for implementing digital communication policies that hinder access to information and ideas. This article explores the prospect that the PAFACA and other recent restrictions on foreign-based speech platforms are driven in large part by nationalist animus (i.e. red scare politics), leading to policies that violate the First Amendment—under the veneer of national security.

The U.S. today has adopted a protectionist orientation under a “America First” banner.[6]  This disposition reflects the growing intensity of the U.S.’s competitive relationship with the P.R.C., and the PAFACA underscores concerns that a foreign-based app could be used as a vector of malign foreign influence for the Chinese Communist Party (“C.C.P.”). Legal scholar Daniel Drezner notes that “American populists and nationalists tend to see everything as a national security threat” citing the Heritage Foundation’s Project 2025, which calls for regulating domestic and foreign technology companies such as TikTok “as potential national security threats.”[7] Arnold Wolfers observed that when political formulas such as “national security” gain popularity, “[t]hey may not have any precise meaning at all.  Thus, while appearing to offer guidance and a basis for broad consensus they may be permitting everyone to label whatever policy he favors with an attractive and possibly deceptive name.”[8]

The concerns related to C.C.P. influence sound eerily reminiscent of the fears of communist infiltration that had pervaded the U.S. government in the early 1950s: What’s past is prologue. In 2023, Congress established the House Select Committee on Strategic Competition between the United States and the C.C.P. with strong bipartisan approval.[9] The committee’s purpose is to investigate international threats posed by China, but also domestic issues “related to the influence of the Chinese Communist Party.”[10] Moreover, the 2023 TikTok Hearing showed that over half of the more than fifty members present cited concerns over speech content and manipulation.[11] House member Cathy McMorris Rodgers’ opening statement invoked the Cold War and pointed to concerns regarding content control: “TikTok is a grave threat of foreign influence in American life. It has been said it is like allowing the Soviet Union the power to produce Saturday morning cartoons during the Cold War.”[12] Congressional concerns over TikTok center on malign foreign influence, and include prospective fears that the C.C.P. could require the app to promote pro-Communist propaganda;[13] influence public opinion;[14] promote content encouraging eating disorders;[15] and censor content critical of China.[16]  Signs of political overreach due to fears of “communist infiltration” can also be found in the legislative responses to P.R.C. ownership of U.S. farmland.  More than two-thirds of U.S. states have enacted or are considering passing laws that would limit or prohibit foreign ownership of land based on fears of Chinese influence.[17]  However, the latest data from the U.S. Dept. of Agriculture reveals that Chinese-based ownership of U.S. agricultural land is less than one percent of foreign-held acres.[18]  While the invocation of national security gives government measures political salience, the PAFACA also comes at a moment where political conditions are ripe for economic and foreign policies that can be packaged around a politically safe “tough-on-China” agenda.[19]

Montana’s 2023 statewide ban provides an analogous law to the PAFACA, and in Alario v. Knudsen,[20] both TikTok Inc., and users of the app sought to preliminarily enjoin the statewide ban.[21]  The plaintiffs argued that the ban violates the First Amendment because it is a prior restraint and a viewpoint-based restriction, while Montana argued that the ban only regulates non-expressive conduct.[22]  Regarding the prior restraint claim, the court concluded that the ban was not a prior restraint because TikTok users in Montana could turn to other social media platforms to engage in similar expressive activity.[23]  The court also found that the law’s foreign policy purpose was not an important state interest since the law explicitly bans TikTok due to its direct connection to China and because states lack constitutional authority in the area of foreign affairs.[24]  Furthermore, the court questioned Montana’s stated purposes for the ban, alluding to a pretextual motivation: “[a]t worst, it is reflective of the pervasive undertone of anti-Chinese sentiment that permeates the State’s case and the instant legislation.”[25] The court questioned the state’s data and consumer protection interests in light of the fact that other social media platforms collect similar data as TikTok and sell such data to third parties.[26]  As the court noted, this “raises serious doubts about whether the state is in fact pursuing” consumer protection interests or is it primarily “targeting the application simply because of its connection to China.”[27]

With regard to the PAFACA, the U.S. government contends that the national security concerns tied to TikTok trump free speech interests because the app operates behind a proprietary algorithm that determines which videos users receive.[28] Therefore, there is the prospect that the Chinese government could manipulate “content received by an enormous daily audience of Americans,” which “could be a powerful tool for manipulating this country’s public discourse and public perceptions of events.”[29] In other words, TikTok is a national security threat because of the subject matter and viewpoints it can potentially carry and promote.  The government also asserts that the Act is “content-neutral because it does not draw ‘distinctions based on the message a speaker conveys.’”[30] Further, the government contends that the Act does not “prohibit or require any particular type of content moderation,” rather, due to a company’s foreign ownership, a foreign adversary “could use it to advance its own interests to the detriment of the United States.”[31] Yet deductively, a foreign adversary’s potential to push specific ideas and viewpoints (e.g. propaganda), or omit content to advance the foreign state’s interests, is exactly the type of content or content moderation the PAFACA targets. Moreover, if such foreign-based ideas pose a grave security risk, then shouldn’t such content also be restricted on other social media platforms through industry-wide regulations?

A review of the congressional Committee on Energy and Commerce’s report on the PAFACA (“PAFACA Report”)[32] shows that the need for the legislation is driven, in large part, by concerns over the prospect of “misinformation, disinformation, and propaganda on the American public.”[33]  The PAFACA Report specifically names the P.R.C. as an adversary that has “used ‘deceptive and coercive methods’ to shape global information”[34] and cites a list of public statements regarding the national security risks posed by TikTok including: statements from the Central Intelligence Agency Director asserting data collected by the P.R.C. has the ability to “shape the content of what goes on to TikTok as well to suit the interests of the Chinese leadership.”[35] Both the PAFACA Report and the TikTok Hearing unequivocally point to a key purpose of the Act: to restrict content that the C.C.P. could promote, including disinformation and foreign propaganda[36]—both of which are protected speech under the First Amendment. Thus, speculative concerns over speech content are a key driver to the national security interests with the PAFACA.

The Act’s questionable constitutional basis, the absence of industry-wide regulation of malign speech content, and public statements made by policymakers raise questions as to whether the motives behind the Act are tied to an embrace of great power competition and anti-P.R.C. fervor. During a 2024 U.S. Senate hearing on child safety online, U.S. Senator Tom Cotton engaged in “McCarthy-esque line of questioning” of TikTok CEO Shou Zi Chew (who is Singaporean), asking about his citizenship and whether he was “a member of the Chinese Communist Party.”[37] U.S. House Representative Dusty Johnson, addressing the TikTok ban, explained “[w]e’re in the middle of a Cold War … For 20 years, the Chinese Communist Party has been working to undermine the basic foundations of this country.”[38] The invocation of the Cold War is perhaps not unintentional; it conjures up a long period of bipartisan consensus, and as legal scholar Jessica Chen Weiss explains, “[i]t provides a powerful plea to Americans to band together to fight a common threat and evokes memories of American victory at the end of a protracted contest against an ‘evil empire.’”[39]

While a case can be made that the regulation of TikTok and other foreign-based apps are motivated by a politically popular China agenda, policymakers and the public should be concerned with the specter of future regulations—motivated by a political urge to embrace a new cold war rivalry—that hinders the freedom of speech and access to ideas under the aegis of national security. As former Supreme Court Justice Warren Brennan warned: “A jurisprudence that is capable of sustaining the supremacy of civil liberties over exaggerated claims of national security only in times of peace is, of course, useless at the moment that civil liberties are most in danger.” Speech regulations pursuant to fears over harmful or malign ideas in the digital public sphere should therefore be tempered with evidence-based policymaking, and informed and critical deliberation, lest the public relives the red scares of the past.

[1] See Sapna Maheshwari and David McCable, Congress Passed a Bill That Could Ban TikTok. Now Comes the Hard Part., The N.Y. Times (Apr. 23, 2024), https://www.nytimes.com/2024/04/23/technology/bytedance-tiktok-ban-bill.html; see also Protecting Americans from Foreign Adversary Controlled Applications Act, H.R. 7521, 118^th Cong., 2^nd Sess., (2024).

[2] See Cristiano Lima-Strong, Jacob Bogage, and Mariana Alfaro, House Passes TikTok Bill That Could Ban App in the U.S., Spawning Senate Support, The Washington Post (Mar. 13, 2024), https://www.washingtonpost.com/technology/2024/03/13/tiktok-ban-passes-house-vote/.

[3] See Alario and TikTok Inc., v. Knudsen, No. CV-23-56-M-DWM, WL 8270811 15 (2023).

[4] Cailey Gleeson, These 39 States Already Ban TikTok from Government Devices, Forbes (Mar. 12, 2024), https://www.forbes.com/sites/caileygleeson/2024/03/12/these-39-states-already-ban-tiktok-from-government-devices/.

[5] See Matthew Kroenig, The Return of Great Power Rivalry: Democracy Versus Autocracy from the Ancient World to the U.S. and China (2020); see also John J. Mearsheimer, The Inevitable Rivalry: America, China and the Tragedy of Great-Power Politics, 100 Foreign Aff. 48 (2021), https://heinonline.org/HOL/LandingPage?handle=hein.journals/fora100&div=148&id=&page=.

[6] Dong Jung Kim, US Protectionism and Competition with China, 47(2) The Washington Quarterly, 71 (2024), https://doi.org/10.1080/0163660X.2024.2366109.

[7] See Daniel W. Drezner, How Everything Became National Security, Foreign Affairs 123 (Aug. 12, 2024), https://www.foreignaffairs.com/united-states/how-everything-became-national-security-drezner.

[8] Arnold Wolfers, “National Security” as an Ambiguous Symbol, 67(4) Poli. Science Quarterly, 481 (Dec. 1952), https://doi.org/10.2307/2145138.

[9] Barbara Sprunt, Legislation to Subsidize U.S.-made Semiconductor Chips Heads to Biden’s Desk, NPR (Jul. 27, 2022), https://www.npr.org/2022/07/26/1113470753/chip-production-semiconductor-senate.

[10] Emily Brooks, McCarthy Taps Mike Gallagher to Chair Planned China Select Committee, The Hill (Dec. 8, 2022), https://thehill.com/homenews/house/-mccarthy-taps-mike-gallagher-to-chair-planned-china-select-committee/.

[11] See generally TikTok: How Congress Can Safeguard American Data Privacy and Protect Children from Online Harms: Hearing Before the Comm. on Energy and Commerce, 118^th Cong. 3 (2023), https://www.congress.gov/118/chrg/CHRG-118hhrg53839/CHRG-118hhrg53839.pdf.

[12] Id. at 3 (opening statement of Chair. Cathy McMorris Rodgers).

[13] Id. at 8 (opening statement of Hon. Frank Pallone) (emphasis added).

[14] Id. at 69 (statement of Hon. Marc Veasey).

[15] Id. at 93 (statement of Hon. Troy Balderson).

[16] Id. at 108 (statement of Hon. August Pfluger).

[17] Phelim Kine, US States are Cutting off Chinese Citizens and Companies from Land Ownership, Politico (Apr. 3, 2024), https://www.politico.com/news/2024/04/03/state-laws-china-land-buying-00150030.

[18] Foreign Holdings of U.S. Agricultural Land Through December 31, 2022, Farm Service Agency, U.S. Dept. of Agriculture, https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/EPAS/PDF/2022_afida_annual_report_12_14_23.pdf (emphasis added).

[19] See Steven T. Dennis, China Is One Subject That Brings Republicans, Democrats Together, Bloomberg (Sept. 9, 2024), https://www.bloomberg.com/news/newsletters/2024-09-09/china-is-one-subject-that-brings-republicans-democrats-together.

[20] Alario and TikTok Inc., v. Knudsen, No. CV-23-56-M-DWM, WL 8270811 (2023).

[21] Id. at 15.

[22] Id. at 5.

[23] Id. at 8.

[24] Id. at 8-9.

[25] Id. at 9.

[26] Id. at 11.

[27] Id.

[28] Brief for Respondent at 35-38, TikTok Inc. and ByteDance Ltd., v. Garland, Nos. 24-1113, 24-1130, 24-1183 (D.C. Cir. argued Sept. 16, 2024).

[29] Id.

[30] Id. at 66 (citing Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).

[31] Id. at 67.

[32] See generally H.R. Rep. No. 118-417 (2024).

[33] Id. at 2.

[34] Id.

[35] Id. at 8.

[36] Id. at 8, 108; H.R. Rep. No. 118-417, 5 (2024).

[37] Drew Harwell, Senate Child-Safety Hearing Highlights: Social Media CEOs Testify, The Wash. Post (Jan. 31, 2024), https://www.washingtonpost.com/technology/2024/01/31/kids-online-safety-hearing-big-tech/.

[38] Cordell Wright, Potential TikTok Ban: Congressman Dusty Johnson Weighs In, Dakota News Now (Mar. 14, 2024), https://www.dakotanewsnow.com/2024/03/14/potential-tiktok-ban-congressman-dusty-johnson-weighs/.

[39] Jessica Chen Weiss, Should the US Pursue a New Cold War with China? Brookings Research (Sept. 1, 2023), https://www.brookings.edu/articles/should-the-us-pursue-a-new-cold-war-with-china/.