Surgeon General Vivek Murthy’s extraordinarily misguided and speech-chilling call this week to label social media platforms as harmful to adolescents is shameful fear-mongering that lacks scientific evidence and turns the nation’s top physician into a censor. This claim is particularly alarming given the far more complex and nuanced picture that studies have drawn about how social media and young people’s mental health interact.

The Surgeon General’s suggestion that speech be labeled as dangerous is extraordinary. Communications platforms are not comparable to unsafe food, unsafe cars, or cigarettes, all of which are physical products—rather than communications platforms—that can cause physical injury. Government warnings on speech implicate our fundamental rights to speak, to receive information, and to think. Murthy’s effort will harm teens, not help them, and the announcement puts the surgeon general in the same category as censorial public officials like Anthony Comstock. 

There is no scientific consensus that social media is harmful to children's mental health. Social science shows that social media can help children overcome feelings of isolation and anxiety. This is particularly true for LBGTQ+ teens. EFF recently conducted a survey in which young people told us that online platforms are the safest spaces for them, where they can say the things they can't in real life ‘for fear of torment.’ They say these spaces have improved their mental health and given them a ‘haven’ to talk openly and safely. This comports with Pew Research findings that teens are more likely to report positive than negative experiences in their social media use. 

Additionally, Murthy’s effort to label social media creates significant First Amendment problems in its own right, as any government labeling effort would be compelled speech and courts are likely to strike it down.

Young people’s use of social media has been under attack for several years. Several states have recently introduced and enacted unconstitutional laws that would require age verification on social media platforms, effectively banning some young people from them. Congress is also debating several federal censorship bills, including the Kids Online Safety Act and the Kids Off Social Media Act, that would seriously impact young people’s ability to use social media platforms without censorship. Last year, Montana banned the video-sharing app TikTok, citing both its Chinese ownership and its interest in protecting minors from harmful content. That ban was struck down as unconstitutionally overbroad; despite that, Congress passed a similar federal law forcing TikTok’s owner, ByteDance, to divest the company or face a national ban.

Like Murthy, lawmakers pushing these regulations cherry-pick the research, nebulously citing social media’s impact on young people, and dismissing both positive aspects of platforms and the dangerous impact these laws have on all users of social media, adults and minors alike. 

We agree that social media is not perfect, and can have negative impacts on some users, regardless of age. But if Congress is serious about protecting children online, it should enact policies that promote choice in the marketplace and digital literacy. Most importantly, we need comprehensive privacy laws that protect all internet users from predatory data gathering and sales that target us for advertising and abuse.

Over the last month, lawmakers moved swiftly to pass legislation that would effectively ban TikTok in the United States, eventually including it in a foreign aid package that was signed by President Biden. The impact of this legislation isn’t entirely clear yet, but what is clear: whether TikTok is banned or sold to new owners, millions of people in the U.S. will no longer be able to get information and communicate with each other as they presently do. 

What Happens Next?

At the moment, TikTok isn’t “banned.” The law gives ByteDance 270 days to divest TikTok before the ban would take effect, which would be on January 19th, 2025. In the meantime, we expect courts to determine that the bill is unconstitutional. Though there is no lawsuit yet, one on behalf of TikTok itself is imminent.

There are three possible outcomes. If the law is struck down, as it should be, nothing will change. If ByteDance divests TikTok by selling it, then the platform would still likely be usable. However, there’s no telling whether the app’s new owners would change its functionality, its algorithms, or other aspects of the company. As we’ve seen with other platforms, a change in ownership can result in significant changes that could impact its audience in unexpected ways. In fact, that’s one of the given reasons to force the sale: so TikTok will serve different content to users, specifically when it comes to Chinese propaganda and misinformation. This is despite the fact that it has been well-established law for almost 60 years that U.S. people have a First Amendment right to receive foreign propaganda. 

Lastly, if ByteDance refuses to sell, users in the U.S. will likely see it disappear from app stores sometime between now and that January 19, 2025 deadline. 

How Will the Ban Be Implemented? 

The law limits liability to intermediaries—entities that “provide services to distribute, maintain, or update” TikTok by means of a marketplace, or that provide internet hosting services to enable the app’s distribution, maintenance, or updating. The law also makes intermediaries responsible for its implementation. 

The law explicitly denies to the Attorney General the authority to enforce it against an individual user of a foreign adversary controlled application, so users themselves cannot be held liable for continuing to use the application, if they can access it. 

Will I Be Able to Download or Use TikTok If ByteDance Doesn’t Sell? 

It’s possible some U.S. users will find routes around the ban. But the vast majority will probably not, significantly shifting the platform's user base and content. If ByteDance itself assists in the distribution of the app, it could also be found liable, so even if U.S. users continue to use the platform, the company’s ability to moderate and operate the app in the U.S. would likely be impacted. Bottom line: for a period of time after January 19, it’s possible that the app would be usable, but it’s unlikely to be the same platform—or even a very functional one in the U.S.—for very long.

Until now, the United States has championed the free flow of information around the world as a fundamental democratic principle and called out other nations when they have shut down internet access or banned social media apps and other online communications tools. In doing so, the U.S. has deemed restrictions on the free flow of information to be undemocratic.  Enacting this legislation has undermined this long standing, democratic principle. It has also undermined the U.S. government’s moral authority to call out other nations for when they shut down internet access or ban social media apps and other online communications tools. 

There are a few reasons legislators have given to ban TikTok. One is to change the type of content on the app—a clear First Amendment violation. The second is to protect data privacy. Our lawmakers should work to protect data privacy, but this was the wrong approach. They should prevent any company—regardless of where it is based—from collecting massive amounts of our detailed personal data, which is then made available to data brokers, U.S. government agencies, and even foreign adversaries. They should solve the real problem of out-of-control privacy invasions by enacting comprehensive consumer data privacy legislation. Instead, as happens far too often, our government’s actions are vastly overreaching while also deeply underserving the public.