Stephen L. Carter: The TikTok ban is Congress' latest moral panic


By Stephen L. Carter

Bloomberg Opinion

We live in an age of moral panic. We look around, see a problem and rush to ban something. “Ban TikTok!” cry members of Congress. “Ban social media for children!” says the state of Florida.

Ban immigrants, ban hate speech, ban imports, ban union shops.

Part of what makes a moral panic a moral panic is that fear overwhelms any attempt at moderation. Politicians follow the panic. And throughout the country's history, there have been repeated moral panics affecting foreigners. Current examples: The right's opinion on immigration and the left's opinion on Russian election interference.

Back in the 1960s, economist George Stigler wrote that passing a law does not solve a problem. He argued against the government's tendency to impose regulations without sufficient evidence – a process, the future Nobel laureate wrote, that tends to result in rules that are “highly capricious and arbitrary.”

In the proposed TikTok ban, we see both aspects of the problem: a lack of evidence and an arbitrary outcome. But that's nothing new. Laws resulting from moral panics generally fit this model. And once adopted, it's difficult to remove them from the books.

Consider some examples.

Why are there strict restrictions on foreign ownership of domestic US airlines to this day? The moral panic of the past is to blame. In the 1920s, Congress enacted the first restrictions after General Mason Patrick of the U.S. Army Air Service testified that the country would need its own civilian aircraft if they ever needed to enter service. (It was also, Patrick said, the only way to train the pilots we would need if another war broke out.) Later, in the Cold War atmosphere of the 1950s, national security experts issued ominous warnings about the Consequences would emerge if opponents did so Freedom of the American sky. The restrictions have been tightened.

Or consider the rules that prohibit issuing licenses for the construction of nuclear power plants (or the performance of several other nuclear-related functions) to companies that are “owned, controlled, or controlled by foreigners.” The cause is the same: moral panic. Ironically, the Atomic Energy Act of 1946, passed in the optimistic wake of World War II, placed few limits on foreign investment. The Senate report on the bill acknowledged that there was no effective way to hide knowledge of nuclear technology from other nations because the “Book of Nature” was available to all.

Then came the Cold War. After the Soviet Union successfully tested an atomic bomb in 1949, the United States was overcome with fear of what the Reds would do next. In 1954, Congress comprehensively amended the 1946 statute. The new law didn't just ban foreign ownership. A license cannot be granted to a US citizen “who is considered undesirable from a national security perspective.”

The same panic had enabled the passage of a law in 1950 that gave the heads of certain federal departments almost unfettered authority to suspend or fire employees “if deemed necessary in the interests of national security.” In practice, the “decision” was often made by the Federal Bureau of Investigation, which was not required to provide the evidence on which its verdict was based. Moral panic, indeed. Of all these laws, only the last one was significantly weakened – the US Supreme Court ultimately, through an interpretation of the law, limited the scope of the possibility of taking measures classified as a security risk.

However, not every moral panic about foreign influence leads to permanent legal damage. Consider the temperance movement. As Stanford Law School's George Fisher points out in his fascinating new book, Beware Euphoria, the 19th-century temperance movement was deeply nativist and marked by a sense that non-Protestant immigrants brought with them the corrupting influence of excessive drinking. World War I gave further impetus to the push for Prohibition, as alcohol was considered something… well… German. But of course the 18th Amendment was repealed.

The war on drugs, however, is a different story. Despite widespread fears about Mexican fentanyl, data today shows that 89% of traffickers are U.S. citizens. But the fear of foreign drugs has existed for a long time. A single example from Fisher's book: One argument against opium was the belief that the Chinese had brought it to our shores.

That brings us back to TikTok.

According to media reports, we have reached a point where MPs voting to ban the platform are being opposed by their own children. Young people love it. But tomorrow they might love something different. Social media is here to stay, but which platforms are popular is a matter of fashion. They have predictable life cycles. Regardless of whether the ban is lifted or not, a new platform will be the favorite within two or three years.

This is another problem of moral panic: the loudest voices are too often those waging yesterday's war. But to paraphrase Isaac Asimov: Everyone can see the crisis when it comes. The real service to the state is to detect it in the embryo.

Stephen L. Carter is a Bloomberg Opinion columnist, a law professor at Yale University and the author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America's Most Powerman Mobster.”