ByteDance, the parent company of the popular video-sharing platform TikTok, has filed a lawsuit in a U.S. appeals court seeking an injunction against a recent law.
As covered in The Dallas Express, Congress passed a law last month requiring the divestment of the Chinese-owned app or else face a nationwide ban.
The legislation specifically singles TikTok out over national security concerns. ByteDance is a Chinese-based company, and under Chinese law, the company is required to hand over data at the request of the Chinese Communist Party. Apps like TikTok gather a tremendous amount of personal data on users that could be used for nefarious purposes, according to national security reports and a recent study reported on by The Dallas Express.
However, the move to potentially ban TikTok in the U.S. has sparked controversy over First Amendment rights.
“If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down,” ByteDance said in its complaint filed Tuesday.
“And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content — an outcome fundamentally at odds with the Constitution’s commitment to both free speech and individual liberty.”
TikTok previously won a First Amendment challenge after Montana became the first state to pass a law banning the app. A federal judge blocked the law from taking effect in November 2023. Similar laws, more broadly written, have been passed in Texas and Florida, as previously reported by The Dallas Express.
At the same time, a broad coalition of bipartisan Congressional members supported the bill, and President Joe Biden signed it into law immediately. Now comes the time to see how the courts will contend with it.
“The bipartisan nature of this federal law may make judges more likely to defer to a Congressional determination that the company poses a national security risk,” said Gautam Hans, a law professor and associate director of the First Amendment Clinic at Cornell University, as reported by The Associated Press.
“Without public discussion of what exactly the risks are, however, it’s difficult to determine why the courts should validate such an unprecedented law.”
The U.S. government has not presented any evidence that ByteDance has exposed data to the Chinese government or that the algorithm used by TikTok is used in a way to influence user’s opinions.
Opinions regarding the potential success of the suit vary widely.
For instance, Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, told the AP, “The First Amendment means the government can’t restrict Americans’ access to ideas, information, or media from abroad without a very good reason for it — and no such reason exists here.”
But Matthew Schettenhelm, an analyst for Bloomberg Intelligence, gave ByteDance a significantly lower chance of success.
“We give TikTok a 30% shot to win and expect a ruling in an expedited case in 4Q,” Schettenhelm said, according to The Insurance Journal. “The D.C. Circuit judges aren’t national-security experts, and they’re likely to defer to Congress’ judgment unless they find a clear First Amendment violation.”
