TikTok’s legal battle against the U.S. government will require the federal court system to weigh national security concerns and the protection of First Amendment rights.
According to legal experts, the argument put forth by the social media company is the strongest one possible. However, it is highly likely that this argument will not succeed.
ByteDance, the parent company of TikTok, has recently filed a lawsuit, contesting what it deems as an extraordinary measure taken by Congress to either compel the app’s sale or prohibit its operation within the United States.
The lawsuit claims that the Protecting Americans From Foreign Adversary Controlled Applications Act violates the constitution. It argues that the law infringes upon the free speech rights of 170 million U.S. users without sufficient evidence from Congress that TikTok poses a genuine national security threat.
The lawsuit argues that members of Congress and a congressional committee express concern over the potential misuse of TikTok in the future, without providing concrete evidence. It points out that TikTok has been operating prominently in the United States since its launch in 2017.
According to ByteDance, a Chinese-based company, the United States is setting a concerning precedent by targeting TikTok, going against its previous stance of advocating for a “free and open internet.”
The lawsuit argues that if Congress is able to do this, it would be able to bypass the protections of the First Amendment by claiming national security concerns and forcing publishers of newspapers or websites to sell in order to avoid being shut down.
According to Alan Rozenshtein, an associate professor of law at the University of Minnesota, he acknowledges that ByteDance presents a strong argument but remains skeptical about its chances of success.
According to him, “It’s the strongest argument they can put forward.” He states that there are approximately 170 million TikTok users in the United States, and all of their activities are considered protected speech. He believes that it is highly probable that the Supreme Court will ultimately uphold this argument, although he does not guarantee it.
According to Rozenshtein, among the numerous First Amendment cases throughout history, the United States vs. Humanitarian Law Project case in 2010 could be considered the most pertinent to the current situation. In this case, the Supreme Court made a 6-3 ruling to uphold a law that banned organizations from offering assistance or support to foreign terrorists.
According to Rozenshtein, TikTok can draw upon numerous cases as well. However, he does not think that precedent holds significant weight in this particular situation.
According to Andrew Verstein, a law professor at UCLA, the court system will ultimately prioritize the government’s interests.
According to Verstein, the divestiture can happen as desired by Congress, as he believes that all the arguments against it are not valid.
According to Verstein, selling TikTok could potentially resolve the First Amendment conflict. He believes that this alternative could play a crucial role in addressing the concerns surrounding free speech.
According to Verstein, now that Congress has made its decision, the only question remaining is whether the Constitution would prohibit Congress from taking the action it has claimed. Verstein expressed confidence that the Constitution does not impose any restrictions in this regard.
ByteDance claims that it is not being provided with genuine alternatives.
The Act’s proponents argue that it is not a ban as ByteDance is given a choice to either divest TikTok’s U.S. business or face shutdown. However, upon closer examination, it becomes clear that this choice is illusory. The Act requires a “qualified divestiture” that is simply unattainable for TikTok to sustain its operations in the United States. This is due to insurmountable commercial, technological, and legal obstacles.
ByteDance argues that it cannot meet the 270-day deadline mandated by the act for completing a sale. Additionally, the company asserts that it has undertaken “extraordinary” efforts to address Congress’ concerns. These efforts include a $2 billion investment in establishing a network for storing U.S. user data within the United States.
As part of an agreement between the U.S. government and TikTok, these measures were implemented.
The lawsuit claims that Congress disregarded this customized agreement and instead opted for a politically motivated and punitive approach by singling out a specific publisher, speaker, and speech forum, along with its ultimate owner.
The U.S. government will prioritize protecting its national security interests as it defends the act. Additionally, the government can assert that forced divestiture is not without precedent.
The lawsuit contends that the ban on TikTok is “unconstitutionally over-broad” as it prohibits an entire means of communication. Furthermore, it asserts that there is no evidence to support the claim that TikTok is used to spread foreign propaganda or poses a threat to data security.
According to the lawsuit, the government does not have the authority to prohibit a communication medium based on its belief that the medium is used for spreading foreign propaganda or other protected content. Furthermore, there is no concrete evidence to support the claim that banning TikTok, in its current form, improves the security of American data. The lawsuit argues that the ban is not specifically designed to achieve the objective of enhancing data security.
According to Professor Norman Bishara of the Stephen M. Ross School of Business at Michigan, the lawsuit filed by ByteDance is expected to be the most extensive legal challenge against the legislation.
According to Bishara, it may not be necessary to have additional litigation unless new issues arise. However, given the complexity and high stakes involved in such cases, unexpected delays and twists can potentially affect the timing of a ban.
According to Bishara, although the lawsuits may not succeed in preventing the ban or divestiture, they still have the potential to bring about some changes to the act. Additionally, they might inspire other TikTok users to push for amendments to the act.
According to him, the outcome of these cases holds great significance and can have implications beyond just the fate of TikTok in the United States. It is a reflection of the ongoing debate regarding the extent of government intervention in trade, technology, and communication matters, and it will ultimately determine which side Americans will choose to support or challenge.
