Former FCC Chair Pai Stumbles Over First Amendment, And Text Of The Law, In Supporting TikTok Ban

Former FCC Chair Ajit Pai seems to have forgotten the First Amendment in his rush to support the TikTok ban. In a recent Fox Business interview, Pai stumbled through a series of perplexing statements, leaving us wondering if he’s ever actually read the bill he’s defending.

And look, we’ve criticized Pai a lot here on Techdirt over the years, but I’ve always thought that he had a firm grasp of the legal issues he was discussing, even when I disagreed with his conclusions. That was especially true around the First Amendment. The only time I thought he truly went weird on the First Amendment was when he caved to then President Trump in agreeing to “review” Section 230.

Pai knows full well that the FCC has no authority over 230. There was really nothing he could do there, so the whole thing appeared to be much more about political expedience, rather than any sort of policy reversal. Pai only finally pushed back on the nonsense demands from Trump over Section 230. It was conveniently timed to just when everyone was focused on the January 6th insurrection at the Capitol.

Again, even when I disagree with Pai on where he comes down on things, I generally think he understands First Amendment law. So I found myself fairly perplexed by his claims in this interview with Cavuto.

It seemed to not just misunderstand the First Amendment issue at play, but suggested that Pai was wholly unfamiliar with the TikTok ban bill he was there to discuss as a supposed expert.

It kicked off with Cavuto replaying a snippet of current FCC Commissioner Brendan Carr defending the TikTok ban at some other point (in totally nonsensical terms, talking about lock-picking and stealing), and then asking Pai for his thoughts. Pai immediately kicked off with an obviously (to anyone who’s actually read the bill) false claim.

“What is at stake here is not the First Amendment rights of TikTok, but simply a national security concern. Indeed, the law that is motivating all of this, doesn’t identify TikTok, and it doesn’t restrict speech. It simply says that any online platform that is subject to the control of a foreign adversary, like China, Iran, North Korea, or Russia, there has to be divestiture there, after a year. Otherwise, the platform will be banned. So I don’t think the First Amendment arguments hold much sway here. Look, I jealously safeguard as much as any American the First Amendment freedoms that we have, but that’s simply not in play in the case of the TikTok bill.”

So, about all of that. Almost everything he said here is wrong. That’s not just a difference of opinion, Pai just seems to not know what he’s talking about.

The bill doesn’t identify TikTok? Are we reading the same law?

That’s the law literally calling out ByteDance & TikTok. So, yeah, it does identify them. By name. Directly.

And, yes, it restricts speech. If ByteDance doesn’t divest, then the app will be banned from US app stores. That is absolutely a restriction on speech. Like, this is a restriction on speech right here:

It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application.

And it’s not like we haven’t tried this before the Supreme Court before. We have. Distributing foreign propaganda is still protected under the First Amendment.

As for the claims of foreign ownership, as Pai knows full well, the only restrictions we have on media involving foreign ownership are those involving public spectrum (you know, the stuff he controlled while at the FCC). The Supreme Court has also been pretty clear that when you get beyond public spectrum, the First Amendment rules.

Again, Pai knows all of this, so I’m not sure why he’s saying otherwise, other than that he has already shown that he’ll compromise his free speech principles for political expediency.

Cavuto then points out that his kids are “cynical” about the ban saying that if it wasn’t TikTok, it would just be some other company spying on them, and asks Pai what to say to them. Pai then responds, effectively proving that he knows this is about speech, not national security, contra his statement above:

“What I would say is there’s a difference between social media companies taking your personal information and using that to send you, for example, individualized ads, and what TIkTok has been shown to be doing, which is using US consumer sensitive information, sending it to China, manipulating the algorithm so that Americans see different content and the like….”

So, first off, there isn’t much of a difference in that first one. Chinese entities are already able to buy US consumer personal information from data brokers. And if that’s a problem, then we should pass a federal privacy law regarding data brokers.

But, second, the point about “manipulating the algorithm” (which I’d argue is just “having an algorithm”) is a free speech right. An algorithm that is recommending content is a set of recommendations. It’s a set of opinions. Those are protected speech, which Pai seems to be admitting.

That’s exactly the concern. It’s still protected speech whether we like what TikTok’s algorithm shows. That’s how the First Amendment works.

Cavuto points out that there’s a slippery slope worry here, and Pai says that’s not true because it’s not like the President can just choose which apps to ban here:

“Well, I think so long as the action is being taken on the basis of objective criteria… if we just said the President, or a cabinet secretary, or even a member of Congress, can simply put a finger in the wind, and that particular application or service would be banned, that would be fairly arbitrary and capricious action…“

I mean, again, the law literally says that the President gets to determine whether or not an app has been successfully divested from a foreign adversary “through an interagency process.” I guess Pai could be arguing here that the “interagency process” is “objective criteria,” but it sure seems to put an awful lot of power in the Presidency to determine if it’s okay to ban an app.

There doesn’t seem to be anything in the law preventing the President from “simply putting a finger in the wind” and saying that an app must be banned.

But I know that because I read far enough into the law to see that it directly names TikTok.