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Legal experts say the TikTok divest-or-ban bill could stand up in court despite being a free-speech disaster

Dan Whateley   

Legal experts say the TikTok divest-or-ban bill could stand up in court despite being a free-speech disaster
  • President Joe Biden signed the TikTok divest-or-ban bill into law on Wednesday.
  • TikTok said it would challenge the law in court, citing First-Amendment violations.

Congress passed a bill this week that will force TikTok's owner to sell its US assets or face removal from mobile-app stores. President Joe Biden signed the bill into law on Wednesday. Parent company ByteDance now has between 9 months and a year to sell or spin off the app in the US.

What comes next will be an all-out legal battle.

TikTok has vowed to "move to the courts," where it plans to challenge the law as "a clear violation of the First Amendment rights of the 170 million Americans on TikTok," per an internal memo sent to staff on Saturday. The company will likely ask for a preliminary injunction, stopping the countdown clock on its sale until legal questions are sorted out.

Other parties, like TikTok creators, may launch separate legal challenges in the coming weeks, as they have done in the past. First-Amendment-focused organizations like the ACLU or the EFF could file amicus briefs defending TikTokers' free-speech rights.

Will these legal challenges work? Maybe…

Earlier attempts to ban or force a sale of TikTok often haven't stood up in court.

Trump's 2020 order to ban TikTok was halted by a federal judge who said it likely exceeded executive authority. A Montana law that attempted to ban the app was struck down in 2023 by a federal judge who said it overstepped state power and "likely violates the First Amendment."

This time, however, could be different. The reason? Congress is arguing that TikTok poses a national-security risk, and the courts tend to defer to that governing body when it comes to issues of national security, experts told Business Insider. The federal government has more authority on that subject than a state like Montana does.

"The court will look at the merits of the case, but really driven by deference to Congress as having much more understanding of the national-security risks than the judges themselves do," Matthew Schettenhelm, a senior litigation analyst at Bloomberg Intelligence, told BI. Schettenhelm estimated the law had a 70% chance of surviving a legal challenge.

It's a coin toss when national-security interests come up against speech protections

If this law wasn't about protecting national security, TikTok's case would be a slam dunk. Its argument that the law violates free speech is clear, as passing a bill that could lead to a ban will box out tens of millions of Americans from an app they use to say things every day.

While the bill is framed around forcing new ownership of TikTok, it's likely to result in a ban, which strengthens the free-speech argument. The Chinese government has signaled it opposes a TikTok divestment. Its foreign ministry said last month that a forced sale was "sheer robbers' logic." Its government has the final say on the export of TikTok's algorithm, which would make the app much harder to spin-off.

Restricting free speech would be a big problem for the bill if it didn't have national-security interests at its core. While First-Amendment arguments are well supported in court, national-security concerns also have a lot of sway, legal experts told BI.

"The First Amendment is the trump card that basically allows you to prevail if you can plausibly make a First-Amendment argument," said G.S. Hans, an associate clinical professor of law at Cornell Law School and associate director of its First-Amendment clinic. "National security also is a trump card, and the government often wins when it claims that. The question for me is, which trump card does the court think is more valuable?"

Security arguments have stood up in the past for more narrow cases against TikTok. A federal judge upheld a Texas law that blocked state employees from using the app on state-owned devices and networks, saying it was a "reasonable restriction on access to TikTok in light of Texas's concerns."

Show us your smoking-gun evidence, Congress

Legal experts said the evidence the US government brings to court to prove that TikTok is a national-security risk will be central to its case. It has to demonstrate that a forced divestiture or outright ban is necessary.

"It can't be just conclusory, or in other words to say, 'We think there's a national security threat. Therefore we should ban the app,'" said Lena Shapiro, director of the First Amendment clinic at the University of Illinois College of Law. "They have to provide evidence."

Congress' bipartisan bill is the culmination of years of political attacks from Washington on TikTok's operations. Politicians fear its owner ByteDance, which is headquartered in China, could be forced to share US user data with the Chinese Communist Party because of a standing National Intelligence Law. US officials have also raised concerns that the CCP could use TikTok to censor or promote information and even influence an election, serving its own interests. TikTok has denied both of these claims.

"We believe the facts and the law are clearly on our side, and we will ultimately prevail," a TikTok spokesperson told BI in a statement. "We have invested billions of dollars to keep US data safe and our platform free from outside influence and manipulation."

Congress hasn't proven that an outright sale or ban of TikTok is the only way to protect national-security interests. Other less severe efforts like a national data privacy law could solve some of its concerns without limiting speech, for example.

"The government bears the burden of pointing to an important interest in instituting this law," said Ramya Krishnan, a senior staff attorney at the Knight First Amendment Institute at Columbia University, which filed a legal challenge against Texas's state-device ban last year. "There's the onus of showing that it could not achieve its interest in narrower ways."