On Wednesday, President Joe Biden signed a law that could effectively ban TikTok if the company does not ditch its Chinese owner ByteDance within the next twelve months. But the law, which quickly passed the House and Senate, could face an uphill battle in U.S. courts for potentially violating the First Amendment rights of both the company and its users.
In a statement, a TikTok spokesperson said, “This unconstitutional law is a ban on TikTok and we will challenge it in court. “We believe the facts and the law are clearly on our side and we will ultimately prevail.”
TikTok has argued that previous attempts to ban the app violated the First Amendment. Last year, the state of Montana passed a TikTok ban that was blocked by a federal judge before it could take effect. U.S. District Judge Donald Molloy wrote that TikTok “had established a likelihood of irreparable harm” if the ban were enacted, both to the First Amendment rights of its users and the creators’ ability to make money.
Some experts say the federal government could fall into some of these same traps.
“Assuming divestment doesn’t happen and the app is actually banned, that means Americans who want to access it can’t do so,” Nadine Farid Johnson, policy director at the Knight Institute, tells WIRED. Banning the app entirely would be going too far, Johnson says, and “wouldn’t be a tailored response to providers.”
“In every case, I think the failure of this legislation is that it is burdening speech much more than is necessary,” says Jenna Leventoff, senior policy counsel at the ACLU.
If TikTok or its creators were to sue the government for violating the First Amendment, experts believe they could make a strong argument. John Morris, director of the Internet Society, says the Montana case and a 2020 case brought by WeChat users following a Trump administration executive order to ban the Chinese chat app, provide a model for how courts can view the TikTok legal challenge.
“In that case, what seemed to be very relevant to the court was the fact that the WeChat platform was a critical platform for WeChat users’ communications, and they didn’t really have a good alternative,” Morris says. “If you look at TikTok, a lot of TikTok users also predominantly use that platform to interact with other people.”
In both the WeChat case and the Montana case, both the companies and their users were parties to the case, meaning that both “speakers” and “listeners” claimed that their speech had been violated.
TikTok has been in the crosshairs of US regulations for several years due to concerns about surveillance by the Chinese government. In 2020, former President Donald Trump issued a executive order ban the app, calling it a threat to “the national security, foreign policy, and economy of the United States.” In 2023, Democratic Senator Mark Warner introduced the Restrictions Act, which would allow the Commerce Secretary’s office to review and ban certain apps. Lawmakers have expressed concern that TikTok may be spying on its American users on behalf of the Chinese government due to a law that allows the Chinese government obligate companies, organizations and individuals to work with the state on national intelligence matters.