ByteDance has strong free speech case against TikTok ban, attorneys say

TikTok and parent corporation ByteDance have strong legal claims against the U.S. government's recently enacted law banning the vastly popular social media app if the companies do not part ways by early next year, attorneys commented on the video sharing platform's free speech lawsuit filed Tuesday. 

"Certainly from a First Amendment standpoint, I think there's a viable claim that the government will have difficulty surmounting," said Douglas E. Mirell, a partner at Greenberg Glusker Fields Claman & Machtinger LLP. While the articulated reason behind the proposed TikTok ban is national security concerns, Congress has not produced a single legislative finding indicating that the relationship between ByteDance and the Chinese government poses a threat to U.S. interests, Mirell continued. 

Attorneys at Covington & Burling LLP and Mayer Brown LLP petitioned the U.S. Court of Appeals for the D.C. Circuit to review the Protecting Americans from Foreign Adversary Controlled Applications Act on Tuesday, calling Congress' actions unprecedented and "obviously unconstitutional." While lawmakers purport to offer Bytedance the choice of selling TikTok or shutting down in the U.S. market, the required divestiture is not commercially, technologically, or legally feasible, read the petition. 

"If upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created. 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. 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," wrote Covington partner Alexander A. Berengaut.

Noting that TikTok has fought off proposed bans in the past, including an executive order signed by President Donald Trump in 2020, West Coast Trial Lawyers president Neama Rahmani agreed that TikTok had a promising First Amendment defense. While national security is a countervailing interest, ByteDance will likely argue that the challenged legislation is about content regulation, said Rahmani. "Strictly scrutinized content regulation is disfavored by the courts, so if TikTok and ByteDance can convince them that this is [unlawfully] regulating content, they're going to win, just like they've won in the past," he added. 

U.S. District Judge Donald W. Molloy for the District of Montana blocked the state from enforcing its TikTok ban last year, explaining in his order that the law violated the First Amendment and the Supremacy and Commerce clauses of the U.S. Constitution. The ruling is under appeal to the 9th U.S. Circuit Court of Appeals. 

Rahmani, a former federal prosecutor, said some lawmakers advocating for the ban pointed to the perceived increasing support for Palestine and antisemitic dialogue on the social media platform since Hamas' attacks on Israel last fall. "That's a problem. That may make for good politics ... but the Justice Department is going to have a tough time defending this law and I wouldn't be surprised if it was struck down," he continued. 

Xinying Huang, a visiting scholar at Stanford Law School who has worked as an attorney in China, said the Act, signed into law by President Joe Biden on April 24, was obscure in definition and scope and jeopardized American civil society. "Now the Act is against TikTok, but later, it may be against other entities or individuals. It is an abuse of power," said Huang. 

Adding that the ban infringed on free speech and freedom of media rights, especially as there was no evidence of unlawful activity by TikTok, Huang said pulling TikTok from the U.S. market will send a negative message to the world and scare away business investments from China and other countries. 

Daniel Alvarez, a business professor at MiraCosta College in Oceanside, said that while the U.S. government may be losing the optics battle, there is cause to worry that TikTok is encroaching on the privacy of millions of Americans. "They are trying to make it as if freedom of speech is being attacked but in reality, the sovereignty of this country is being attacked," he said about TikTok's lawsuit. 

Alvarez said he could not highlight any study or news report of TikTok's surreptitious activities but said the fact that the app is restricted on federal government devices and some state government devices signaled that the platform was not safe. To fight the ban, TikTok should consider going public to increase transparency and capitalize on its loyal userbase as potential investors, said Alvarez. 

"I don't know if ByteDance would actually sell TikTok in the U.S. because there's so much money at stake," said Rahmani. ByteDance has publicly stated that it has no plans to sell the platform, valued between $80 billion and $100 billion. "But you know, it's better to kind of keep the company and potentially lose ... Money talks and eventually, if they do lose in the federal courts, their hand may be forced," he said."