by TikTok, the short video company with Chinese roots, did the most American thing possible on May 7, 2024: The US government, in the person of Attorney General Merrick Garland, sued in federal court. The suit claims the federal law that went into effect on April 24, 2024, banning TikTok unless it sells itself violates the US Constitution.
The law specifically names TikTok and its parent company, ByteDance Ltd. It also applies to other applications and websites that reach more than a million monthly users that allow people to share information and are 20% or more owned by China, Russia, Iran or North Korea. If the president determines that such apps or websites “pose a significant threat to national security,” then those apps and websites, too, must be sold or banned from the US.
TikTok’s suit says the lawsuit violates the First Amendment by failing to provide evidence of the national security threat posed by the app and by failing to seek a less restrictive remedy. Despite lawmakers’ claims to the contrary, the law forcing TikTok’s dismissal — the Act to Protect Americans from Foreign Control Requests — involves First Amendment interests. In our view, it does so in ways that go beyond this specific case.
As a company incorporated in the United States that provides an online publishing platform, TikTok has the First Amendment-protected right to choose the messages—in this case, user videos—that it chooses to publish.
A ban, scholars who study law and technology, appears to be a massive prior restriction that is generally barred by US courts. Prior restraint is an action taken by the government to prevent speech, usually some form of publication, before it occurs.
Speech in the crosshairs
Supporters of the law say it’s not a ban — TikTok is just selling itself. Supporters describe the bill as divestment, a purely economic regulation that they say should be protected from First Amendment challenge. After the sale, users could continue to use TikTok, regardless of who owns the company. But the law seems to us to be an attempt to control speech by mandating a change of ownership.
The stated goal of some supporters of the law is to change the content of the conversation on the app. The bill’s lead author, former US Representative Mike Gallagher, who resigned in April to join a venture capital firm partially backed by Microsoft, explained to the New York Times that he was primarily concerned about the potential of Communists Chinese. Party to spread propaganda on the app. The Times and The Wall Street Journal reported that Congress passed this bill in part because of unfounded allegations that TikTok was unfairly promoting one side in the Israel-Hamas war.
Imagine if the government told Jeff Bezos he had to sell The Washington Post because it was worried he could push a particular agenda using his control over the newspaper. Or to use a digital analogy, what if the government told Elon Musk that he had to sell X, formerly known as Twitter, because it didn’t like his moderation in legal parlance? Those cases clearly involve First Amendment protections.
Matters of ownership
Transferring ownership of TikTok from one company to another is very important for purposes of First Amendment analysis.
Supreme Court Justice Elena Kagan noted during oral arguments in a case unrelated to TikTok ownership that ownership could make a difference in an app. She noted that the sale of Twitter to Elon Musk changed the character of the app. Kagan said, “Twitter users woke up one day and found out they were X users and the content rules changed and their feeds changed, and suddenly they were getting another online newspaper, so to speak, in a metaphorical sense every morning.”
In fact, the Washington Post found a bias right after Twitter changed hands.
By forcing the sale of TikTok to an entity with no ties to the Chinese Communist Party, Congress’ intention with the law is to change the nature of the platform. That kind of government action involves the primary concerns designed to protect the First Amendment: government interference with the speech of private parties.
US Representative Raja Krishnamoorthi, co-sponsor of the House bill on TikTok, pointed to another case where the US government ordered a Chinese company to sell a US app. In 2019, the Committee on Foreign Investment in the United States ordered the new Chinese owners of Grindr to sell the dating app, which the Chinese owners did the following year. In that case, the foreign owners could not assert First Amendment rights in the United States, since they were outside the US, so no court considered this issue.
National security demands
The government has not disclosed to the public the national security concerns cited in the TikTok law. While these concerns may require some form of intervention, if accurate, some Americans are likely to refuse to accept claims of national security urgency in good faith. To address doubts about the government’s secretive power, especially when it comes to free speech, it can be argued that the government needs to present its claims.
U.S. Sens. Richard Blumenthal and Marsha Blackburn, both of whom supported the TikTok law and saw the government’s secret testimony, called for that information to be declassified. We believe that is a critical step for the public to properly consider the government’s claim that a ban is necessary in this case. In any case, the courts will ultimately weigh the secret evidence in determining whether that interference with speech was justified by the government’s national security concerns.
Absent judicial invalidity or legislative repeal of the law, what seems likely to happen is a world where TikTok can’t operate effectively in the United States in a year, and mobile app stores can’t push out updates to the software and Oracle Corp. able to continue hosting the app and its US user data on its servers. TikTok could go dark on January 19, 2025, in the United States.
This article is republished from The Conversation, a non-profit, independent news organization that brings you reliable facts and analysis to help you make sense of our complex world. It was written by: Anupam Chander, Georgetown University and Gautam Hans, Cornell University
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The authors do not work for, consult with, or own shares in, or receive funding from, any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
