TikTok law threatening a ban if the app isn't sold raises First Amendment concerns (2024)

TikTok law threatening a ban if the app isn't sold raises First Amendment concerns (1)

TikTok, the short-video company with Chinese roots, did the most American thing possible on May 7, 2024: It sued the U.S. government, in the person of Attorney General Merrick Garland, in federal court. The suit claims the federal law that took effect on April 24, 2024, banning TikTok unless it sells itself violates the U.S. Constitution.

The law names TikTok and its parent company, ByteDance Ltd., specifically. It also applies to other applications and websites reaching more than a million monthly users that allow people to share information and that have ownership of 20% or more from China, Russia, Iran or North Korea. If the president determines that such applications or websites "present a significant threat to the national security," then those apps and websites, too, must either be sold or banned from the U.S.

TikTok's suit says that the law violates the First Amendment by failing to provide evidence of the national security threat posed by the app and for failing to seek a less restrictive remedy. Despite legislators' claims to the contrary, the law forcing the divestiture of TikTok—the Protecting Americans from Foreign Adversary Controlled Applications Act—implicates First Amendment interests. In our view, it does so in ways that ripple beyond this specific case.

As a company incorporated in the United States that provides an online publishing platform, TikTok has a right protected by the First Amendment to select what messages—in this case, user videos—it chooses to publish.

A ban appears to us, scholars who study law and technology, to be a massive prior restraint, which is generally barred by U.S. courts. Prior restraint is action by the government to prevent speech, typically some form of publication, before it occurs.

Speech in the crosshairs

The law's backers say that it is not a ban—all TikTok has to do is sell itself. These supporters describe the bill as a divestiture, a purely economic regulation that they say should insulate it from First Amendment challenge. After the sale, users could happily keep on using TikTok, not caring who owns the company. But the law seems to us an attempt to control speech by mandating a change in ownership.

Changing the speech content on the app is the express goal of some of the law's backers. The principal author of the bill, former U.S. Rep. Mike Gallagher, who stepped down from office in April to join a venture capital firm partly backed by Microsoft, explained to The New York Times that he was principally concerned about the potential for the Chinese Communist 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 accusations that TikTok was unfairly promoting one side in the Israel-Hamas war.

Imagine if the government told Jeff Bezos that he had to sell The Washington Post because it was worried that he might push a particular agenda using his control of the newspaper. Or to use a digital analogy, what if the government told Elon Musk that he had to sell X, formerly Twitter, because it didn't like his content moderation of legal speech? Those scenarios clearly have a connection to First Amendment protections.

Ownership matters

Transferring TikTok's ownership from one company to another matters greatly for the purposes of First Amendment analysis.

Supreme Court Justice Elena Kagan observed 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 one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning."

Indeed, The Washington Post found a rightward tilt after Twitter changed hands.

By forcing the sale of TikTok to an entity without ties to the Chinese Communist Party, Congress' intent with the law is to change the nature of the platform. That kind of government action implicates the core concerns 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 bill on TikTok, pointed to another instance where 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 the new Chinese owners of Grindr 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, given that they were outside the U.S., and thus no court considered this issue.

National security claims

The government hasn't disclosed to the public the national security concerns cited in the TikTok law. While such concerns, if accurate, might warrant some kind of intervention, some Americans are likely to decline to take claims of national security urgency on good faith. To address skepticism of secret government power, particularly when it involves speech rights, the government arguably needs to present its claims.

U.S. Sens. Richard Blumenthal and Marsha Blackburn, both of whom supported the TikTok law and have seen the government's secret evidence, called for the declassification of that information. We believe that's a vital step for the public to properly consider the government's claim that a ban is warranted in this instance. In any case, the courts will ultimately weigh the secret evidence in determining whether the government's national security concerns justified this intrusion upon speech.

What seems likely to happen, absent judicial invalidation or legislative repeal of the law, is a world in which TikTok cannot effectively operate in the United States in a year's time, with mobile app stores unable to push out updates to the software and Oracle Corp. unable to continue hosting the app and its U.S. user data on its servers. TikTok could go dark on Jan. 19, 2025, in the United States.

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TikTok law threatening a ban if the app isn't sold raises First Amendment concerns (2024)

FAQs

TikTok law threatening a ban if the app isn't sold raises First Amendment concerns? ›

TikTok's suit says that the law violates the First Amendment by failing to provide evidence of the national security threat posed by the app and for failing to seek a less restrictive remedy.

What are the violations of the First Amendment? ›

Only that expression that is shown to belong to a few narrow categories of speech is not protected by the First Amendment. The categories of unprotected speech include obscenity, child p*rnography, defamatory speech, false advertising, true threats, and fighting words.

What are the rights of the First Amendment? ›

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The Second Amendment gives citizens the right to bear arms.

How to get unbanned from going live on TikTok? ›

If you are a business owner or simply just another user, dealing with a ban on TikTok can be frustrating. Experts suggest that the best way to get unbanned from the platform is to submit an appeal.

Which action would violate the First Amendment? ›

Incitement. The First Amendment does not give anyone the right to incite actions that would harm others or otherwise cause people to break the law, including to commit acts of violence.

What is an example of something the First Amendment does not protect? ›

The First Amendment does not protect speech that incites people to break the law, including to commit acts of violence.

What are the five basic freedoms guaranteed by the First Amendment? ›

The five freedoms it protects: speech, religion, press, assembly, and the right to petition the government. Together, these five guaranteed freedoms make the people of the United States of America the freest in the world.

What is the First Amendment right for dummies? ›

It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government.

What does it mean that the rights in the First Amendment are not absolute? ›

The right to free speech is not absolute. The U.S. Supreme Court has ruled that the government sometimes may be allowed to limit speech. Historically, a fundamental distinction arose between the content of speech and the means whereby that speech is expressed.

Is TikTok getting banned? ›

But now TikTok is really on the brink of being banned, because of legislation that was passed by more than eighty per cent of representatives in Congress, and signed by President Biden. The app will be removed from distribution in U.S. app stores unless ByteDance sells it to some, probably American, entity.

Can you get a banned TikTok back? ›

whether you get banned for legit reasons. or were wrongfully banned, you will get a chance to appeal your case. If it comes down to this, your appeal needs to be really in depth. and explain exactly why. TikTok should reinstate your account.

Why was I permanently banned from TikTok? ›

Accounts that consistently violate Community Guidelines will be banned from TikTok. If your account has been banned, you'll receive a banner notification when you next open the app, informing you of this account change. If you believe your account was banned incorrectly, let us know by submitting an appeal.

Which country banned TikTok first? ›

China's neighbor, India, was among the first countries to have placed restrictions on TikTok and other Chinese apps. India banned some 60 Chinese apps, including TikTok, during a military confrontation along the Himalayan border that it shares with China.

Is TikTok safe for 12 year olds? ›

How safe is TikTok? Using any social network can be risky, but it's possible for kids to safely use the app with adult supervision (and a private account). TikTok has different rules for different ages: Users under age 13 can't post videos or comment, and content is curated for a younger audience.

How do I get rid of TikTok ban? ›

The easiest way to get unbanned from TikTok is to submit an appeal, but this doesn't always work. If you don't get your account back, you'll lose all the data associated with your account including your videos, comment history, and followers. Consider using a VPN if your appeal doesn't work.

Which example shows a violation of someone's First Amendment rights? ›

A violation could occur if a peaceful protestor was arrested (violating freedom of speech and assembly), if a newspaper was prevented from criticizing the government (violating freedom of the press), or if someone was persecuted due to their religion (violating freedom of religion).

What is a violation of the amendment rights? ›

Constitutional rights violations can take a variety of forms, ranging from retaliating against you for expressing your First Amendment right to free speech, to arresting you without possessing probable cause to believe you have committed a crime, or even arbitrarily depriving you of your Fourteenth Amendment right to ...

How is freedom of speech violated? ›

Freedom of speech

While international law protects free speech, there are instances where speech can legitimately restricted under the same law – such as when it violates the rights of others, or, advocates hatred and incites discrimination or violence.

What are some examples of speech that is not protected? ›

The Court generally identifies these categories as obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child p*rnography.

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