TikTok must be shut down
The rule of law is the foundation of civil society and the fuel on which democracy runs. It is also essential to a healthy economy because it is what gives people and companies the confidence to invest in the future, knowing that their investment will be protected, regulated and taxed according to clear, known rules.
Unfortunately, maintaining the rule of law sometimes means enforcing laws the country might be better off without. Case in point: the TikTok ban.
Concerns about Chinese ownership of an app with 170 million American users are legitimate. Nevertheless, it is rash to force ByteDance to divest or shut it down. Unless a sale can be arranged, those millions of users will lose access to a platform where they are engaging in constitutionally protected speech. What’s more, it’s not clear that the risk of data theft or of algorithmically enhanced Chinese propaganda outweighs the danger of infringing on broader speech rights.
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However, Congress thought differently. The Protecting Americans From Foreign Adversary Controlled Applications Act passed both houses of Congress last year with overwhelming bipartisan support, and President Joe Biden’s signature made it the law of the land. The Supreme Court has since upheld its constitutionality. Respect for the rule of law requires that it be enforced or repealed.
Presidents from both major parties have failed this test.
The “divest or shut down” order was scheduled to go into effect on Jan. 19, just hours before Biden left office. Apparently unwilling to anger millions of American TikTok fans and influencers, on Jan. 17, he announced that he would delay the deadline, leaving the decision (and any political blowback) to Donald Trump. Trump promptly announced his own executive order, delaying the reckoning for a further 75 days.
The legality of these delays is dubious. The law provides for a 90-day delay to close the deal once a willing buyer is found, but no deal has yet been made. And although Trump has floated names of possible buyers, including Elon Musk and Microsoft, no sale is possible without a willing seller. ByteDance has repeatedly insisted it will not sell TikTok, and it has not reversed this stance. On Jan. 23, a board member told Bloomberg News that the company was exploring its options to keep TikTok running in the United States without selling its operations.
Ideally, ByteDance will relent, a buyer will be found, and all this will have been a distressing, but ultimately minor, episode in the history of lawless executive behavior. But it’s also possible that 75 days will go by with TikTok no closer to naming a buyer, and Trump will be tempted to keep issuing temporary reprieves to avoid the wrath of the TikTokers.
The White House might be able to get away with letting TikTok operate in contravention of the law because it’s not clear who would have standing to sue over nonenforcement. But “Can I get away with it?” is not the right standard for presidential action — even if it is one adopted with increasing frequency by presidents from both parties. The correct standard is “What does the law say?” And this one clearly says that, unless TikTok is sold, it must be shut down.
When companies are allowed to operate in a legal gray area, it’s bad for everyone. It undermines respect for the rule of law and creates potentially dangerous precedents. It also multiplies opportunities for corruption and influence-peddling because a company that is perpetually on the brink of being shut down needs to remain friendly with the politicians who control its fate.
To the current occupants of the White House, this might sound like a feature, not a bug. They should remember that Democrats will eventually regain the presidency — and TikTok’s favor, if the company is still operating irregularly. In the meantime, influencers and fans will have been implicitly encouraged to build a presence on a platform that has no legal mandate to operate in the United States. They deserve better, and so does the rule of law.
The Post’s View | About the Editorial Board
Editorials represent the views of The Post as an institution, as determined through discussion among members of the Editorial Board, based in the Opinions section and separate from the newsroom.
Members of the Editorial Board: Opinion Editor David Shipley and Deputy Opinion Editor Stephen Stromberg, as well as writers Mary Duenwald, Robert Gebelhoff, James Hohmann, Megan McArdle, Eduardo Porter and Keith B. Richburg.
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