Federal judge seems wary of Texas ban on TikTok at public universities

During a hearing Wednesday, U.S. District Judge Robert Pitman seemed skeptical of the state's arguments defending Texas' ban on the use of the social media app TikTok on public university campuses. The state argues the app, owned by a Chinese company, represents a cybersecurity risk; a group of professor says the ban interferes with their classes and research. (Credit: Shelby Tauber for The Texas Tribune)

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A federal judge seemed skeptical of the state’s reasoning to ban TikTok on Texas public university campuses at a Wednesday hearing on a lawsuit filed by a group of professors over the new directive.

In December 2022, Gov. Greg Abbott banned the use of TikTok on government-issued cellphones and laptops, joining more than 30 U.S. states that have issued similar directives over cybersecurity concerns. The state’s ban led public universities across Texas to block access to TikTok on their Wi-Fi and wired networks — but the professors behind the lawsuit, filed in July, argue the bans halted their plans to teach about and research the app’s benefits and risks.

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, who is representing the professors, argued the ban threatens public university faculty’s freedom of speech by limiting their research projects.

Proponents of the ban have noted that TikTok is owned by the China-based company ByteDance, and that the Chinese Community Party has, in at least one case, accessed data from the app to identify and locate protesters in Hong Kong. The Biden administration, too, issued a TikTok ban on federal government-issued mobile devices earlier this year.

U.S. District Judge Robert Pitman asked the professors’ attorney Wednesday why the ban should be tossed if other states and the federal government have similar measures in place. Jaffer argued the federal ban concerns executive agencies, not public universities whose professors feel their work is now limited.

In terms of cybersecurity concerns, Jaffer said privacy concerns hold true for most major social media apps, including Instagram and X, the site formerly known as Twitter. The state has not proved TikTok is a distinct threat worthy of banning when other social media apps are still allowed, he said.

“The defendants haven’t established that their concerns are real and not conjectural,” he added.

Instead of a ban, Jaffer said the professors he represents propose universities issue separate laptops or create a separate Wi-Fi network for researchers and faculty studying TikTok.

Todd Dickerson, the state’s assistant attorney general, argued that professors who wish to study or research TikTok can do so on their personal devices. But Jaffer said the ban also applies if a professor is conducting state work on their personal devices.

“Essentially what Texas is saying here is public university professors should be required to do their jobs on their own time, on their own dime,” Jaffer said.

The faculty coalition represented by the Knight Institute includes at least one Texas professor — Jacqueline Vickery, a digital media professor at the University of North Texas — who wrote in a declaration to the court that the ban has impeded her teaching plans. However, Dickerson argued the state cannot justify overturning the ban based on one professor’s experience, and the Knight Institute has not adequately proved the ban is a concern for professors statewide.

“How many officials are we actually talking about that are using TikTok for research purposes?” Dickerson said.

But Pitman asked whether numbers of professors alone are a fair “test of reasonableness,” when their research into the app could hold value as well. Similarly, Jaffer argued that research and critical inquiry about TikTok and its effects should also not be limited to internal reports from the company itself.

“Independent research about these platforms is vital to inform the public about exactly the threat that Texas says the apps pose,” Jaffer said.

As for security concerns, Dickerson doubled down on reported links between TikTok and the Chinese Communist Party, though Jaffer pointed out again that there is no evidence suggesting TikTok is collecting any more data from U.S. users than other mainstream social media platforms.

“We don’t have to wait until havoc is wreaked to take precautionary measures,” Dickerson countered.

Pitman, however, seemed skeptical of this argument as well: The state has issued a ban, not a precautionary measure, he said. The Knight Institute's proposed measure of offering separate university laptops or networks for TikTok use would be a precautionary measure, Pitman said.

He added that it seemed there was “some mania” leading Texas and other states to isolate TikTok as a threat compared to other social media platforms — to which Jaffer responded that, though most major social media platforms pose privacy concerns, xenophobia may be playing an outsized role in the TikTok bans.

Abbott has previously said the app could be a way for the “Chinese government … to attack our way of life.”

Disclosure: University of North Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

Correction, Nov. 16, 2023 at 10:17 a.m.: An earlier version of this story incorrectly referred to the group representing the professors challenging the state’s TikTok ban as the Knight Foundation. The group is the First Amendment Institute at Columbia University.