The TikTok bill that threatens a ban if the app isn’t sold raises First Amendment concerns

TikTok, the short video company with Chinese roots, did the most American thing possible on May 7, 2024: it sued the US government, in the person of Attorney General Merrick Garland, in federal court. The lawsuit claims that the federal law that took effect on April 24, 2024 and bans TikTok unless it sells itself violates the U.S. 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, allow people to share information and are 20% or more owned by China, Russia, Iran or North Korea. If the president determines that such applications or websites “pose a significant threat to national security,” then those apps and websites must also be sold or banned from the US.

TikTok’s lawsuit argues that the law violates the First Amendment by failing to provide evidence of the national security threat the app poses and by not seeking a less restrictive remedy. Despite claims from lawmakers to the contrary, the law forcing TikTok’s divestiture — the Protecting Americans from Foreign Adversary Controlled Applications Act — implicates First Amendment interests. In our view, this is done 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 right protected by the First Amendment to select which posts (in this case, user videos) it wants to publish.

To us scholars who study law and technology, a ban seems like a huge prior restriction, one that is typically prohibited by US courts. Prior restraint is the government’s action to prevent expression, usually a form of publication, before it takes place.

Speech in focus

The law’s supporters say it’s not a ban; all TikTok has to do is sell itself. These advocates describe the bill as a divestiture, a purely economic settlement that they say should protect it from the First Amendment challenge. After the sale, users could happily continue using TikTok regardless of who owned the company. But the law seems to us to be an attempt to control speech by imposing a change in ownership.

Changing the speech content on the app is the stated goal of some of the law’s supporters. The bill’s lead author, former U.S. Rep. Mike Gallagher, who left office in April to join a venture capital firm backed in part by Microsoft, explained to The New York Times that his main concern was the possibilities for the Chinese Communist Party. Party to spread propaganda on the app. The Times and The Wall Street Journal have reported that Congress passed this bill in part because of unsubstantiated allegations that TikTok was unfairly promoting one side in the war between Israel and Hamas.

Imagine if the government told Jeff Bezos to sell The Washington Post because it feared he could push a certain agenda by using his control of the newspaper. Or to use a digital analogy: what if the government told Elon Musk to sell X, formerly Twitter, because it was unhappy with its substantive moderation of legal statements? These scenarios clearly relate to First Amendment protections.

Ownership is important

The transfer of ownership of TikTok from one company to another is of great importance to the First Amendment analysis.

Supreme Court Justice Elena Kagan noted during oral arguments in a case unrelated to TikTok’s ownership that ownership can 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 noticed that they were morning.”

The Washington Post did indeed find itself tilting to the right after Twitter changed ownership.

By forcing the sale of TikTok to an entity unaffiliated with the Chinese Communist Party, Congress’ intent with the law is to change the nature of the platform. That kind of government action implies the core problems that the First Amendment was designed to protect against: government interference in the speech of private parties.

U.S. Rep. Raja Krishnamoorthi, co-sponsor of the House of Representatives’ TikTok bill, pointed to another case in which the U.S. government ordered a Chinese company to sell a U.S. app. In 2019, the Committee on Foreign Investment in the United States ordered Grindr’s new Chinese owners 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 U.S., and therefore no court considered this issue.

National security claims

The government has not made public the national security concerns raised in the TikTok bill. While such concerns, if justified, might justify some form of intervention, some Americans are likely to refuse in good faith to accept claims of national security urgency. To address skepticism about government secret power, especially when it comes to the right to speech, the government must come forward with its claims.

U.S. Senators Richard Blumenthal and Marsha Blackburn, who both supported the TikTok bill and have seen the government’s secret evidence, called for that information to be released. We believe this is a critical step for the public to properly consider the government’s claim that a ban is justified in this case. Either way, the courts will ultimately weigh the classified evidence to determine whether the government’s national security concerns justify this infringement of speech.

What will likely happen, absent judicial or legislative repeal, is a world in which TikTok cannot operate effectively in the United States in a year, with mobile app stores unable to release updates to the software and Oracle Corp. cannot continue to host the app and US user data on its servers. TikTok could go dark in the United States on January 19, 2025.