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TikTok, creators challenge U.S. divest or ban law on First Amendment grounds

Tiktok CEO Shou Zi Chew speaks with the press after meeting with Sen. John Fetterman, D-Pa., at the U.S. Capitol in Washington, D.C., on March 14. File Photo by Bonnie Cash/UPI
Tiktok CEO Shou Zi Chew speaks with the press after meeting with Sen. John Fetterman, D-Pa., at the U.S. Capitol in Washington, D.C., on March 14. File Photo by Bonnie Cash/UPI | License Photo

May 14 (UPI) -- TikTok's lawsuit against the U.S. government will task the federal court system with considering national security interests and First Amendment rights.

Legal experts tell UPI the argument by the social media company is the best it could make, but it is likely a losing argument.

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TikTok parent company ByteDance filed a lawsuit earlier this month, challenging what it calls an "unprecedented step" taken by Congress to either force the sale of the app or ban it in the United States.

The lawsuit alleged that the Protecting Americans From Foreign Adversary Controlled Applications Act is unconstitutional. It skirts the free speech rights of 170 million U.S. users without Congress showing a legislative finding that TikTok poses an actual threat to national security.

"Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence," the lawsuit reads. "Even though the platform has operated prominently in the United States since it was first launched in 2017."

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ByteDance, a Chinese-based company, claims that the United States is establishing a dangerous precedent by singling out TikTok, changing course from its history of supporting a "free and open internet."

"If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down," the lawsuit says.

Alan Rozenshtein, associate professor of law at the University of Minnesota, told UPI that the argument by ByteDance is strong but he is not convinced it will win the day.

"It's the best argument they could make," he said. "There are 170 million people in the United States that use TikTok. All of that activity is presumptively protected speech. More likely than not, ultimately the Supreme Court will allow this to stand. I'm not saying it's a slam dunk."

Rozenshtein said that of the many First Amendment cases in history, one that may be the most relevant to this one is the United States vs. Humanitarian Law Project case in 2010. In that case, the Supreme Court ruled 6-3 to uphold a law that prohibited organizations from providing material support or aid to foreign terrorists.

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Rozenshtein added that TikTok has many cases it may draw from as well. However, he does not believe precedent weighs so heavily in this case.

Andrew Verstein, professor of law at UCLA, agreed that the court system will side with the interests of the government in the end.

"My gut says these arguments are all losers and that this divestiture can occur as Congress wants," Verstein told UPI.

Verstein explains that the First Amendment conflict can be avoided if ByteDance sells TikTok. He expects that second option will be key in unraveling the free speech argument.

"Here, with Congress having spoken, the question would only be would the Constitution prevent Congress from what it has purported to do?" Verstein said. "I'm pretty confident the Constitution doesn't prevent that."

ByteDance argues that it is not being given real options.

"They claim that the Act is not a ban because it offers ByteDance a choice: divest TikTok's U.S. business or be shut down. But in reality, there is no choice. The 'qualified divestiture' demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally."

ByteDance adds that it is not possible to complete a sale in the 270-day timeline required by the act. It also argues that it has taken "extraordinary" measures to respond to Congress' concerns, including investing $2 billion to build a network to store U.S. user data in the United States.

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These measures came as part of an agreement between TikTok and the U.S. government.

"Congress tossed this tailored agreement aside in favor of the politically expedient and punitive approach of targeting for disfavor one publisher and speaker, one speech forum and one speech forum's ultimate owner," the lawsuit says.

The national security interests of the U.S. government will be the primary defense of the act. But the government may also argue that forced divestiture is not unprecedented at all.

The United States has a long history of forcing the sale of assets or limiting ownership by foreign investors in various forms of media.

"Given that we have divestiture and limitation on ownership in other media environments, television, newspapers -- the fact that it would be really easy to maintain the First Amendment rights of all of these 170 million people if the company would just sell its assets," Verstein said. "And the fact that it won't do it because its government tells it not to, that doesn't strike me as the kind of argument that is going to hold sway."

A group of eight content creators filed a separate lawsuit on Tuesday, also on free speech grounds.

Their lawsuit argues that the act to ban TikTok is "unconstitutionally over-broad" because it bans an entire mode of communication. It also says this ban is not based on any evidence that TikTok is used to transmit foreign propaganda or is a threat to data security.

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"The government cannot ban a medium for communication because it believes that medium is used to transmit foreign 'propaganda' or other protected content. Nor does the government have any actual, non-speculative evidence that banning TikTok in its current form enhances Americans' data security, or that its ban is narrowly tailored to accomplish that objective," the lawsuit says.

Norman Bishara, professor of business law and ethics in the Stephen M. Ross School of Business at Michigan, wrote in an email to UPI that he believes the ByteDance lawsuit will be the most comprehensive challenge to the legislation.

"Other similar litigation seems superfluous unless more issues come to light," Bishara wrote. "Still, with complex and high-stakes litigation like this there are always twists and turns with delays that could impact the timeline of a ban."

Bishara adds that while the lawsuits may fail to stop the ban or divestiture, they could still create some change to the act. They may also motivate other TikTok users to advocate for modifications to the act.

"The stakes for the outcome of these cases can reverberate beyond the fate of TikTok in the U.S. and can be seen as part of the story of what level of government intervention in trade, tech issues, and communications issues, which Americans are going to support or challenge," he said.

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