General

The debate over the appropriateness of the Congressional action against TikTok can be debated for a long time and probably will until the Senate takes action—which could be weeks. What is less debatable is TikTok’s, and pretty much all of the social media industry’s contribution to the situation. In essence, social media has hung itself with its own lifeline.

The industry has long embraced Section 230, a section of Title 47 of the United States Code that classifies them as part of the telecommunications industry. That particular law immunizes social media platforms and users from legal liability for online information provided by third parties. The section also protects web hosts from liability for voluntarily and in good faith editing or restricting access to objectionable material, even if the material is constitutionally protected. These protections do not apply to what is traditionally known as “the media.” That is an important distinction.

The FCC also regulates related to the foreign ownership of telecommunications companies, broadcast, and cable companies, in that it is not allowed. If TikTok expects protection under Section 230, it has to abide by all the FCC regulations, including ownership. In that case, the legislation is consistent with US law.

News media or Telecom?

However, the CEO of TikTok has made the case that the legislation infringes on the First Amendment rights of the company, creators, and users because… wait for it … TikTok is a major source of news for users. In other words, it is a news medium. According to TikTok, 43 percent of users rely on the app for daily news. But that sets up an entirely different problem.

Print, broadcast, and cable media are bound by ethics and laws to print truth. If they knowingly publish defamatory and untrue information, they can be sued by the injured party. That was most recently and famously demonstrated in the lawsuits against Fox News and Rudy Guiliani for intentionally spreading lies about election technology related to the 2020 US election.

Those same lies were and still are spread on social media platforms, including TikTok, with impunity under the protection of Section 230. But if they are a news medium, the protections of Section 230 go away and TikTok and creators who spread disinformation can now be held accountable for libel and slander.
Social media companies can adjust algorithms limiting what kind of information can be distributed on their networks and they reluctantly apply those restrictions when they are pushed to. But they can’t be sued for disseminating that information under Section 230. If they