TikTok Free Speech Rights Offer a Bulwark Against a Forced Sale

If Congress forces ByteDance Ltd. to sell TikTok Inc. or face a US ban, the social media company is expected to reprise First Amendment arguments that have so far successfully kept the app from being blocked in Montana.

A potential lawsuit seeking to block the forced divestiture legislation on those grounds would set up a legal showdown between free-speech concerns and the federal government’s ability to restrict a foreign-owned social media platform used by more than 150 million Americans.

TikTok is equipped with a strong arsenal of legal arguments, attorneys say, namely that the company has a right to operate a platform that hosts speech. TikTok users may similarly argue that a ban infringes their rights to express themselves. There is recent precedent supporting that tack: a federal judge blocked the enforcement of a Montana state law banning the app late last year, citing free speech concerns raised by TikTok and some of its users.

“The Montana decision pre-figures the very real First Amendment problems that this bill would face if enacted,” said Ramya Krishnan, an attorney at the Knight First Amendment Institute at Columbia University.

The federal divestiture bill would require any legal challenge to the act to be filed directly to the US Court of Appeals for the District of Columbia Circuit within 165 days of the bill’s enactment. Under the act, TikTok would have 180 days to find a buyer or face a ban.

“What we should really be considering is: What does this mean for the way the government is able to impact the speech of Americans and the apps Americans have the choice to use?” said Jennifer Huddleston, a technology policy research fellow at the libertarian think tank Cato Institute who said she is skeptical the bill would survive First Amendment scrutiny.

But the bill’s supporters argue it doesn’t target speech. TikTok would be able to continue operating freely on the condition it splits off from ByteDance.

“These types of restrictions on ownership aren’t new,” said attorney Joel Thayer, president at the think tank Digital Progress Institute, which backs the bill and filed an amicus brief supporting Montana’s ban. “In almost every economic vertical we have some form of foreign ownership restrictions.”

The bill passed the US House with bipartisan support, but faces an uncertain future in the Senate. President Joe Biden has said he will sign it if it reaches his desk, but TikTok has said it intends to exhaust all legal challenges before it considers any kind of divestiture, Bloomberg News previously reported. China has already signaled its opposition to a forced sale.

Lawmakers across the political spectrum have argued the platform’s Chinese ownership poses a significant national security risk given the Chinese Communist Party’s potential to access Americans’ personal data and influence what users see.

TikTok didn’t return a request for comment.

Free Speech Precedent

Internet users have a right to access the social media of their choosing, First Amendment experts say, and a ban on TikTok would prohibit millions of Americans from engaging or hearing protected speech.

Lawmakers supporting the legislation argue it would prevent China from using TikTok’s algorithm to promote certain political agendas or sow election disinformation. But Huddleston said even if those allegations are true, that justification wouldn’t stand up to free speech standards.

“When it comes to propaganda, our response in America has been not to ban the propaganda but to allow Americans to see it and determine the truth for themselves,” she said.

In the 1965 case Lamont v. Postmaster General, the US Supreme Court ruled Americans have a First Amendment right to access communist political propaganda through the mail. The ruling struck down a federal law requiring the US Postmaster General to detain foreign communist pamphlets and magazines unless the recipient affirmatively requested the mail.

TikTok’s challenge to the Montana ban argued the law failed the First Amendment’s strict scrutiny standard, which applies to laws that restrict speech based on its content. That test requires the government to show it’s using the least restrictive means to advance a compelling government interest.

US District Judge Donald Molloy didn’t decide whether to apply strict scrutiny or the less stringent, intermediate scrutiny. But he found that Montana’s law didn’t even meet that lower standard, which requires the speech restriction to be “narrowly drawn.”

“The Legislature used an axe to solve its professed concerns when it should have used a constitutional scalpel,” Molloy wrote in his ruling granting TikTok’s preliminary injunction. Montana appealed the ruling to the Ninth Circuit.

The government has a legitimate interest in protecting American data, but a TikTok ban wouldn’t solve that issue, Krishnan said. Congress hasn’t enacted a national data privacy law that would apply to all social media companies, and Krishnan said that would undermine arguments the divestiture bill does more than target speech.

Montana failed to show that “it couldn’t protect its interest in some less restrictive way” she said. “That’s where any TikTok ban is going to fail.”

Other efforts to ban TikTok have also stumbled. Then-President Donald Trump’s 2020 executive orders attempting to ban the platform and the Chinese messaging app WeChat were also shot down in court, although the rulings primarily focused on procedural issues rather than free speech concerns.

National Security Concerns

Forced divestment of an app connected to China isn’t unprecedented, and the federal government has succeeded in banning other Chinese communications products.

The LGBTQ dating app Grindr was purchased by the China-based Beijiong Kunlun Tech Co. Ltd. in 2018. But the Committee on Foreign Investment in the United States, an executive branch entity that reviews foreign acquisitions of American companies, ordered Kunlun Tech to sell the app back to a US company, citing concerns about data privacy.

A US investor group purchased the app in 2020.

In 2019, Congress passed a law directing the Federal Communications Commission to remove equipment associated with national security threats to US networks. That resulted in bans on telecom equipment sold by Huawei Technologies Co. and ZTE Corp., which were upheld by federal appeals courts despite speech challenges by the companies.

There’s also First Amendment case law delineating between speech and conduct, Thayer said.

In the 1986 case Arcara v. Cloud Books Inc., the US Supreme Court upheld the constitutionality of a New York public health law that required an adult bookstore to shut down.

Although the bookstore argued the law interfered with its First Amendment right to sell sexually explicit books, the Supreme Court found the law was targeting the alleged prostitution occurring at the store. First Amendment scrutiny doesn’t apply when the conduct at issue has no “significant expressive element,” the court said.

“Foreign ownership rules have followed a tried and true legal policy that mainly focuses on conduct, not the content,” Thayer said. “That puts you out of that First Amendment scrutiny.”