Free Speech Experts See U.S. Losing Case Against New TikTok Law

A new law seeking Chinese divestment of TikTok is unlikely to survive scrutiny if challenged for reasons similar to those that blocked Montana’s ban against the app, free speech experts tell us.

TikTok said Wednesday it’s preparing a legal challenge against the new law, which would ban the platform in the U.S. if ByteDance doesn’t sell it within a year. ByteDance “doesn’t have any plan to sell TikTok,” the company reportedly said Thursday in a post on Toutiao, a ByteDance-owned news aggregation platform in China.

The federal government will have a heavy burden in proving national security interests outweigh the First Amendment rights of TikTok users, said Benjamin Barr, a former counsel to two different Federal Election Commission chairmen and a free speech attorney who has argued cases against federal, state and local regulators. Speculation about how the Chinese government is using TikTok data and how that constitutes a national security threat “isn’t likely to overcome First Amendment concerns,” he said.

The federal injunction against Montana’s ban in Alario v. Knudsen will be a “useful reference point,” especially on the “core question” of whether the new restrictions burden the First Amendment rights of TikTok and its U.S. users, Electronic Frontier Foundation Civil Liberties Director David Greene said.

Montana’s law “oversteps state power and infringes on the constitutional rights of users and businesses,” U.S. District Judge Donald Molloy ruled in his November opinion. The state has an interest in protecting consumers, but Montana did not show the state law achieves that goal, Molloy said.

The federal government must show its national security concerns are “real and not hypothetical or conjectural” and that a TikTok ban is the correct solution to address that problem, said Greene. The most recent report from the director of national intelligence suggests the national security threats are speculative, he said. That February report says a propaganda arm of the People’s Republic of China runs TikTok accounts that targeted U.S. political parties during the 2022 midterm election cycle.

FCC Commissioner Brendan Carr has been vocal about the national security justification for severing Chinese ownership of the app, as have Senate Commerce Committee Chair Maria Cantwell, D-Wash., and Senate Intelligence Committee Chairman Mark Warner, D-Va. Beijing tracking U.S. users' location data is just one example of the national security threat Chinese ownership poses, Carr said Tuesday.

The U.S. Supreme Court has long made clear that Americans have a right to receive information, even if the government identifies it as propaganda, said Grayson Clary, staff attorney for the Reporters Committee for Freedom of the Press. The government can’t justify limiting the free flow of information based on supposed “bad conduct” from the Chinese government, he said. TikTok users’ right to information should be “front and center” in the debate, he said. Congress didn’t take its time to study data privacy as a legitimate public policy issue and offer a systematic solution, said Clary: “This is a case where there was a lot of momentum to punish a particular company, and that goal seems to have been driving the train.”

This is a “sad reflection on Congress using a cheap political stunt to gain favor with the public,” said Barr. A TikTok ban “looks good for optics,” but Congress should have deliberated over “sound privacy legislation,” he said. “Instead, it formulated a popular gimmick that likely runs afoul of the First Amendment.”

Several senators last week were optimistic that the new law can withstand judicial scrutiny (see 2404230066). The White House in a press briefing denied claims President Joe Biden wants a TikTok ban, saying the new law protects American data against Chinese manipulation (see 2404250032).

The U.S. restricts foreign ownership in a variety of sensitive sectors, including communications, utilities, infrastructure, transportation and banking, said Stephen Weymouth, an associate professor of business at Georgetown University. What’s different here is that the new law targets one company, rather than foreign investment in a particular sector, he said.