When Congress forced the sale of TikTok’s U.S. operations, the promise was simple: an American-run app, free of foreign manipulation. In January, an American-led joint venture took control of TikTok’s U.S. recommendation algorithm and its content moderation. Even though the ownership changed, its algorithmic gamesmanship didn’t. Given the upcoming election, this has grave implications.
Just look at TikTok’s track record. In 2020, TikTok banned the pro-life group Live Action, then reinstated it after a public outcry and blamed “human error.” Young America’s Foundation reported videos pulled without explanation or appeal. In 2023, TikTok shut down the ad account of a veteran-owned company, Mammoth Nation, after first approving its campaign.
Think about what this means for the midterm elections. Depending on where on the political spectrum TikTok falls, it will materially affect the outcome. TikTok’s importance to our elections is why President Donald Trump opposed a federally mandated ban or forced divestiture by ByteDance and why he positioned himself as the “savior” of an app used by 170 million Americans.
Unfortunately, TikTok’s pendulum is reversing course on the president. This year, conservative creators still report videos rejected until they mute words and phrases, particularly those in support of the Iran incursion, with appeals that drag on for days while their reach collapses and their revenue disappears. This is not limited to conservative posts — left-leaning users leveled the same complaints to TikTok for posts critical of the administration and of immigration enforcement. This action prompted California to announce an investigation. TikTok’s response to California’s charge? It simply blamed a data-center outage.
But whether the aggrieved party is a pro-life nonprofit group or a California state senator, no one outside the company can verify why content disappears. A company curating in complete opacity cannot be held accountable by anyone. TikTok’s wanton disregard for free speech is a direct affront to our election integrity and, by extension, our democracy. We cannot leave such decisions in the hands of a social media company.
We already know how that story ends. Recall the suppression of the Hunter Biden laptop story, Parler’s deplatforming, and Trump’s ban from major platforms. Point being, these harms are not ephemeral or benign — they are long-lasting and decadent.
Worse, TikTok continues to use our laws as its shield to avoid any accountability.
Like every major platform, TikTok plays whichever role keeps it out of court. When sued over what appears in its feed, it posits that it is a neutral conduit merely hosting other people’s videos so as to entitle it to Section 230’s immunity. However, when legislatures enact laws to quell specific concerns with its services, it transforms into a publisher whose curatorial choices are protected speech under the First Amendment.
But herein lies the rub: It cannot be both. And until the law makes it choose, anyone on the wrong side of its moderator’s judgment will continue to have no recourse.
It is why we should take away one of TikTok’s weapons: Section 230. As he attempted in his first term, Trump’s Federal Communications Commission can clarify the contours of the statute’s protections.
Even better, Congress can revisit Section 230 to recalibrate what it was always meant to do: protect services that host other people’s speech, not companies that shape what Americans see according to their own judgment, only to disclaim responsibility for the result.
To do this, Congress should condition Section 230’s immunity on viewpoint-neutral curation. A service that removes, demotes, or demonetizes lawful speech because of the speaker’s political or religious viewpoint is acting as a publisher, and it should face the liability publishers face.
However, a service that moderates on neutral, published grounds, such as illegality, spam, threats, and protecting children, should keep the shield. To make the rule enforceable, covered services should give users notice when content is removed or restricted, a specific reason tied to a published rule, and a timely appeal.
To be clear, neither action tells TikTok what content to carry. TikTok would remain free to editorialize as aggressively as it likes — it simply could not claim a liability shield built for passive hosts while doing so. The government is simply offering TikTok a choice, and it keeps the government out of individual moderation decisions entirely.
NEWSOM SPEARHEADS INVESTIGATION INTO TIKTOK FOR ALLEGED SUPPRESSION OF ANTI-TRUMP CONTENT
Nor is it partisan. The rule protects the conservative creator throttled for discussing immigration and the progressive one whose post about immigration enforcement drew zero views. Better yet, a neutrality condition binds whoever owns the algorithm, irrespective of whether it’s Beijing, Oracle, or the next buyer.
TikTok is the right place to start. Its current ownership structure exists because of a federal statute and a presidential order, and its new operators have assumed full control of U.S. moderation and the recommendation algorithm. They promised Americans a feed “free from outside manipulation.” Congress and the administration, namely the FCC, should hold them to a standard they cannot redefine depending on which lawsuit they are defending.
Joel Thayer is a senior fellow for AI and emerging technology at the America First Policy Institute
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[ H/T Washington Examiner ]
