Foreign nationals inside the United States of course have all kinds of constitutional rights, and one might argue that to the extent TikTok is operating within the territorial United States, it should enjoy the same First Amendment protections that any other U.S. publisher or speaker enjoys. But that brings us to the second issue: Whether social media apps are indeed speakers or publishers at all. That debate is at the heart of the giant, looming question that overhangs all social media regulation in the United States at the moment – namely, what is the status of social media companies for First Amendment purposes? The Supreme Court hasn’t weighed in yet, but if it treats social media companies as publishers or speakers, they may well enjoy roughly the same First Amendment rights available to other corporate speakers in the United States. On the other hand, if the Court considers them more like, say, common carriers or conduits – an equally live possibility – then the government would have much more room to regulate. Or, the Court could conclude, social media companies are publishers for some purposes, and conduits for others. But this simply reposes the question: what is TikTok’s status here?

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