Legal battle looms as TikTok's free speech protections challenged in court over U.S. ban

President Joe Biden signed legislation on Wednesday that would ban TikTok from app stores unless its Chinese owner sells it, setting up a potential court battle over the platform's free speech protections under the U.S. Constitution. While the bill itself does not explicitly address speech, civil rights advocates, TikTok, and its users are concerned about the implications and could potentially sue to block it. TikTok has denied sharing U.S. user data and expressed confidence in defeating the legislation in court.

Legal experts suggest that opponents of the law could argue that it infringes on free speech rights by limiting user expression and businesses' ability to promote products on the app. TikTok successfully fought against a similar ban in Montana, although the state is appealing the ruling. The Knight First Amendment Institute and other organizations have labeled the legislative effort as "censorship." If a court agrees with this assessment, it would apply strict scrutiny and require the government to prove that it has not violated First Amendment rights and that there are no less restrictive ways to achieve national security goals.

Supporters of the bill argue that it is not about speech but rather regulates a commercial activity, as it requires TikTok's Chinese owner, ByteDance, to sell its U.S. operations within a year to prevent China from accessing user data easily. The legislation designates the U.S. Court of Appeals for the D.C. Circuit as the venue for legal challenges. TikTok could seek a preliminary injunction to halt the law's enforcement while it pursues a case asserting its unlawfulness.

To successfully defend a First Amendment challenge, the government would need to demonstrate a compelling government interest such as national security and show that the law is narrowly tailored to address that interest. Critics argue that the government's case is weakened by its lack of concern over data abuse by other social media platforms, such as Facebook. They suggest that if data privacy were genuinely the concern, legislation should apply to all social media companies, not just TikTok.

The government's argument would likely be that TikTok can continue operating and U.S. users can still use the app, but under different ownership, making the law's impact on speech incidental and permissible. In November, a federal judge in Montana blocked the state's attempt to ban TikTok, ruling that it violated the Constitution and exceeded state power. Montana, supported by Virginia and 18 other states, is appealing the decision.