First Amendment To Be Tested As TikTok Owner Fights US Ban – Analysis

By Dr. Amal Mudallali

TikTok, the Chinese-owned social media platform, and the American government are set for a faceoff in the US courts in a high-profile legal and constitutional fight. It will pit national security against the First Amendment to the US Constitution, with far-reaching implications for free speech, technology platforms and US-Chinese relations.

TikTok, as was expected, this month filed a suit in a US court against the Justice Department, arguing that a new law passed by Congress violates the First Amendment. The law — the Protecting Americans from Foreign Adversary Controlled Applications Act — was passed by the House on March 14 and the Senate approved the bill in mid-April. It became law when President Joe Biden signed it.

The New York Times recounted how the bill was secretly worked on by a group of bipartisan members of Congress, along with the Justice Department and the White House. It was rushed through Congress and onto the president’s desk, which led aides to nickname it “Thunder Run.”

In the House, the bill was overwhelmingly passed by 352 votes to 65. At that stage, it proposed giving TikTok’s parent company ByteDance six months to divest its US assets, selling the company, or face a ban. To guarantee its passage and expedite it in the Senate, the bill was attached to the $95 billion foreign aid package for Ukraine and Israel. It passed 79-18 in the Senate and Biden signed it into law the next day.

The Senate version of the bill extended the deadline given to ByteDance to nine months, as well as a “a possible additional three-month extension if a sale is in progress,” practically giving it a year to sell TikTok or face a potential ban.

There are 170 million Americans on TikTok, almost half of the country. Some 62 percent of those aged under 30 use the video-sharing app, along with 39 percent of 30 to 49-year-olds. More than 40 percent of American users of the app say they regularly get their news there, which is one cause of concern for those who want to ban the platform. There are also 5 million small American businesses on the platform.

Congress felt comfortable enough to act because a Pew poll showed that a majority of Americans (59 percent) see TikTok as a major or minor threat to US national security. This follows party lines, with 41 percent of Republicans seeing it as a major threat to national security, compared to 19 percent of Democrats. But another Pew study also showed that support for banning TikTok had declined from 50 percent in March 2023 to 38 percent in the fall of 2023. Republicans were more supportive of a TikTok ban (50 percent) than Democrats (29 percent).

Members of Congress put the threat to national security they believe is posed by TikTok and its Chinese owners, including the Chinese government, high on their list of reasons for wanting to ban the platform.

Senate Commerce Committee Chairwoman Sen. Maria Cantwell said: “Congress is not acting to punish ByteDance, TikTok or any other individual company. Congress is acting to prevent foreign adversaries from conducting espionage, surveillance, maligned operations, harming vulnerable Americans, our servicemen and women, and our US government personnel.”

Republican Sen. Josh Hawley, who introduced his own bill to ban TikTok on government devices last year, framed the app as opening “the door for the Chinese Communist Party to access Americans’ personal information … through aggressive data harvesting.”

But technology experts consider the data privacy argument to be weak and not compelling. They point out that China does not need TikTok to get information on Americans because it could get it from any data company.

The New York Times reported that TikTok last year submitted a proposal to the White House called “Project Texas” that would protect all US user data by storing it with Oracle, the American software company. This information “would not be allowed to be transferred outside the US,” nor would it “be accessible by ByteDance or TikTok employees outside the US.” But the newspaper quoted American officials saying that Project Texas was “inadequate to handle national security concerns involving TikTok.”

Congress’ rush to vote on this bill and its timing is seen by some law experts as related to Israel’s war on Gaza and the proliferation of pro-Palestinian posts on TikTok. Professor Emeritus John Quigley of Ohio State University told Arab News: “This bill has been in Congress for some time without any action to bring it to a vote, but when the situation developed in Gaza, suddenly it was brought to action and there were statements of concern by members of Congress about the postings on TikTok. This will enhance the First Amendment argument.”

Rep. Mike Gallagher, the Republican congressman who introduced the bill, accused TikTok of “brainwashing” American youth into sympathizing with Hamas by “intentionally pushing pro-Palestinian and anti-Israel content to its users last year.” Other members have reportedly said the Gaza war had stoked lawmakers’ appetites to regulate the app.

The reaction to the bill being passed was quick, both from the company and from civil liberty organizations. TikTok said it would challenge the law in the courts, as it had done before, when President Donald Trump tried and failed to ban the platform in 2020 and when Montana last year passed a law banning it. Montana became the first US state to pass a complete ban on the app, citing concerns about data privacy and its Chinese ownership. TikTok and content creators fought the case based on free speech and possible harm to business owners and won.

Constitutional experts are critical of the new law because they believe it grants “too much control and power to the president,” as he can “unilaterally decide that, if there is another app that is owned by an adversary and the president does not like it or angers him, he can ban it” without “any due process.” According to the law, all the president has to do is notify Congress and the public, as Jenna Leventoff, senior policy counsel at the American Civil Liberties Union, said during a panel debate on TikTok, national security and the First Amendment at the Berkman Klein Center at Harvard University.

Members of Congress, including ranking Democrats and the progressives who voted against the ban, believe the government has not made a good case for national security or given enough time for debate.

It is unclear how the US Court of Appeals for the District of Columbia Circuit will decide on this issue, but there is a chance it may go to the Supreme Court. With the current state of US-China relations — Biden on Tuesday slapped increased tariffs on an array of Chinese goods and Beijing vowed to retaliate — and with the tension between the two powers sure to skyrocket as the election nears, TikTok may pay the price.

However, Quigley was “not certain the law will be implemented. Public pressure by the millions of users, new assurances by TikTok or a new president could lead to settlement out of court.” No matter how it plays out, the First Amendment and national security will never be the same in this new technological age. It looks like this will now be taken up in the courts and not in the court of public opinion, with national security probably trumping free speech if US-China tensions do not subside, allowing TikTok to have its day in court without the political drama with Beijing.

• Dr. Amal Mudallali is a consultant on global issues. She is a former Lebanese ambassador to the UN.