The US Senate approved a bill on Tuesday with potential implications for TikTok’s presence in app stores, stipulating that the Chinese-owned platform must be sold or face removal. This decision sets the stage for a legal confrontation regarding the extent of TikTok’s free expression protections under the US Constitution.
Although the bill itself does not directly address speech, its implications have stirred concern among civil rights advocates, TikTok users, and app consumers. If President Joe Biden signs it into law, as anticipated, these groups may pursue legal action.
Legal analysts anticipate opponents of the bill arguing that it infringes upon free speech by limiting user expression and impeding businesses from utilizing the app for marketing purposes. Courts sympathetic to this view would subject the legislation to rigorous scrutiny, requiring the government to prove its compliance with First Amendment rights and explore alternative methods to achieve national security goals.
Supporters of the bill maintain that its focus lies not on speech but on regulating business activities. By mandating the sale of TikTok’s US operations within a year, it aims to prevent China from accessing user data easily. The bill designates the US Court of Appeals for the DC Circuit as the venue for legal challenges, potentially allowing TikTok to seek an injunction against its enforcement while contesting its legality.
Legal experts highlight that any government attempt to justify the bill under strict scrutiny must demonstrate a compelling national security interest and show that the law is narrowly tailored to address the issue at hand. Critics question the government’s selective concern, noting its lack of action against other social media platforms’ data practices.
David Greene of the Electronic Frontier Foundation suggests that if the US genuinely prioritized data privacy in relation to China, it would pursue legislation affecting all social media companies, not just TikTok. To defend the bill in court, the government would need to argue that it regulates commercial transactions and safeguards national security, rather than infringing upon free speech.
The government’s position would assert that TikTok could continue operating in the US, albeit under non-Chinese ownership, thereby minimizing the impact on speech as “incidental” and permissible.
In a related legal development, a federal judge in Montana rejected an attempt to ban TikTok within the state, highlighting ongoing legal challenges to restrictions on the platform.
