After President Biden signed a law that requires ByteDance, TikTok’s Chinese parent company, to divest from the app or face a ban in the United States, TikTok CEO Shou Chew vowed to fight in court. A spokesperson for the social media company said that the law is unconstitutional because it “would trample the free speech rights of 170 million Americans.”
This statement betrays a misunderstanding of rights in general and constitutional rights, such as the freedom of speech, in particular. For the most part, the rights enumerated in the Constitution are negative rights. Holders of negative rights are entitled to non-interference; if I have a negative right to something, others have an obligation to not take from me what I have a legitimate claim to.
For instance, the right to freedom of movement, as stated in Article 13 of the Universal Declaration of Human Rights, is an example of a negative right. The right to freedom of movement means that I am entitled to move freely from one country to another. But no one is obligated to assist me with my travel arrangements, nor am I owed travel accommodations of any sort.
On the other hand, holders of positive rights are entitled to provision of some good or service. That is, if I have a positive right to something, others have an obligation to give me what I have a legitimate claim to. For instance, the right to a nationality, as stated in Article 15 of the Universal Declaration of Human Rights, is an example of a positive right. The right to a nationality means that I am entitled to have a nationality. The country where I was born is obligated to provide it to me. I am owed a nationality.
Free speech, which is guaranteed by the First Amendment of the Constitution, is an example of a negative right. I am entitled to express myself freely, but no one is obligated to help me express myself. In particular, no one is obligated to give me a platform to express myself. I am not owed a column in The Hill, or any other news outlet for that matter.
That is why the argument that the law requiring ByteDance to divest from TikTok or face a ban violates “the free speech rights” of Americans is misguided. Even if TikTok ends up being banned in the U.S. because ByteDance refuses to divest from the social media app, it would not amount to a violation of the freedom of speech that is guaranteed to Americans by the Constitution. Freedom of speech is a negative right. The right to free speech does not mean that the federal government owes every American a platform from which to broadcast their speech. It simply means that the federal government should not interfere with Americans’ freedom to express themselves.
Having one less digital platform from which to express themselves would not suppress the free speech of Americans, as the social media company alleges. The Constitution gives Americans the freedom to speak freely without interference. It does not guarantee speaking engagements for Americans. As another social media company once said, freedom of speech is not freedom of reach.
Moti Mizrahi is a professor of philosophy at the Florida Institute of Technology in Melbourne, Fla.