US TikTok bill sets up fight over free speech protections
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[April 25, 2024]
By Mike Scarcella
(Reuters) - The U.S. government set up a likely court showdown over the
scope of TikTok's free speech protections under the U.S. Constitution
after President Joe Biden signed legislation on Wednesday to ban the
social media platform from app stores unless its Chinese owner sells it.
While the bill itself does not say anything about speech, the measure
has alarmed civil rights advocates, TikTok and users of the app who
could all sue to block it.
TikTok has denied sharing U.S. user data. Its chief executive said on
Wednesday the company would defeat the legislation in court.
Legal experts said opponents of the law could argue it infringes on free
speech by preventing users from expressing themselves and businesses
from using the app to promote products.
TikTok has already beaten a similar attempt to ban its use in Montana,
although the U.S. state is appealing that ruling.
Jameel Jaffer, executive director of the Knight First Amendment
Institute, called the U.S. legislative effort "censorship — plain and
simple" in a letter that his group and others sent to lawmakers in
March.
A court that agrees with that assessment would apply strict scrutiny,
meaning the government would have to prove it has not violated speech
rights under the Constitution's First Amendment and that there are no
lesser ways to achieve the government's national security goals.
The bill's promoters have argued it has nothing to do with speech but
merely regulates a commercial activity by requiring TikTok's
Beijing-based owner ByteDance to sell the U.S. operations within about a
year, denying China easy access to users' data.
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The legislation, which cleared the Senate with broad support on Tuesday,
sets the U.S. Court of Appeals for the D.C. Circuit as the venue for any
legal challenges. TikTok could ask the court to preliminarily bar
enforcement of the law while it pursues a case contending the measure is
unlawful and should be struck down.
Legal experts said if the government winds up fighting a First Amendment
case under the strict scrutiny standard, it must prove national security
or some other compelling government interest is at stake. It will also
have to prove the law was "narrowly tailored" to address that particular
issue.
Critics spot a weakness in the government's potential case on this
point: Washington thus far has seemed unconcerned about abuse of users'
data by other social media platforms.
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![](../images/042524PIX/news_g17.jpg)
Giovanna Gonzalez of Chicago demonstrates outside the U.S. Capitol
following a press conference by TikTok creators to voice their
opposition to the “Protecting Americans from Foreign Adversary
Controlled Applications Act," pending crackdown legislation on
TikTok in the House of Representatives, on Capitol Hill in
Washington, U.S., March 12, 2024. REUTERS/Craig Hudson/File Photo
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Plenty of companies such as Meta Platforms' Facebook collect, store
and share users' data, but the government has never treated that
activity as a national security threat or enacted data protections.
The Electronic Frontier Foundation's David Greene said that if the
U.S. were really concerned about China and data privacy, it would
push legislation that applies to all social media companies, not
just TikTok.
The government would need to convince a court the measure is not a
limitation on speech but a regulation of a commercial transaction
and a way to protect national security.
The government would argue that TikTok could continue to operate and
U.S. users continue to use it, just not under Chinese ownership, so
the law's effect on speech was "incidental" and permitted.
In November, a U.S. federal judge in Montana blocked the state's
effort to ban TikTok within its borders. TikTok and some users filed
a pair of First Amendment lawsuits challenging the proposed ban,
which had been set to take effect in January.
U.S. District Judge Donald Molloy issued a preliminary injunction
halting the state's ban, saying it "violates the Constitution in
more ways than one" and "oversteps state power." Montana, backed by
Virginia and 18 other states, is challenging the order on appeal.
"The law is not narrowly tailored, nor does it leave open any
alternative channels for targeted communication of information,"
Molloy wrote.
TikTok is due to respond to the Montana appeal by April 29.
(Reporting by Mike Scarcella; Editing by David Bario, Tom Hals,
David Gregorio and Richard Chang)
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