TikTok sues to block potential ban. Can it win?

Written by on May 9, 2024

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(NEW YORK) — ByteDance, the parent company of TikTok, struck the latest blow in a high-stakes clash between the social media company and the U.S. government, filing a lawsuit this week challenging a forced sale of TikTok as unconstitutional.

The case could nullify the measure enacted last month that requires ByteDance to sell the platform or suffer a ban of TikTok. The move raises a question for roughly 170 million TikTok users and others interested in the outcome: Can TikTok win in the courts?

Legal experts who spoke with ABC News said TikTok has a viable case on First Amendment grounds, saying the ruling will come down to how judges weigh free speech protections against national security concerns tied to Chinese ownership of the app.

In the end, federal courts will likely side in favor of the forced sale since they have shown themselves to be deferential to the government when it invokes national security interests, some experts predicted.

“This case is not a slam dunk in either direction,” Alan Rozenshtein, a law professor at the University of Minnesota who focuses on the First Amendment, told ABC News. “There’s a chance TikTok could win — it’s more likely the courts, including the Supreme Court, will uphold the law.”

TikTok did not immediately respond to ABC News’ request for comment.

In its lawsuit, ByteDance criticizes the measure enacted by the U.S. as an “unprecedented step” aimed at singling out and banning TikTok.

“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” the lawsuit says.

The main argument brought by ByteDance centers on the government’s alleged infringement of the free speech rights of TikTok users and the company. The measure unlawfully invokes national security fears as a means of shutting down TikTok, leaving open the possibility of the government doing the same to any newspaper or website, the lawsuit argues.

“There are clearly First Amendment questions here,” Timothy Zick, a professor of constitutional law at William and Mary Law School, told ABC News. “It’s a viable claim.”

In support of its First Amendment challenge, ByteDance says in its lawsuit that the measure amounts to an outright ban, since the company will not be able to sell TikTok within the allotted nine-month period due to technical issues and commercial impediments.

The question of whether the measure equates to a ban of TikTok could end up being a key pivot point for the case, Amanda Shanor, a professor of First Amendment law at the University of Pennsylvania, told ABC News.

“A law that just prohibited TiKTok outright would be much more vulnerable to a First Amendment challenge than a requirement that ByteDance sell TikTok,” Shanor said. “The question otherwise becomes a little more like: Does TikTok have a First Amendment interest in keeping its parent company? To me, that’s a much weaker contention.”

The Department of Justice has yet to respond but is likely to argue that national security concerns should be prioritized over First Amendment protections, the experts said. The bipartisan passage of the law in the House and Senate on national security grounds will help bolster the government’s argument, some experts added.

The social media platform has faced growing scrutiny from some government officials over fears that user data could fall into the possession of the Chinese government and the app could be weaponized by China to spread misinformation.

There is little evidence that TikTok has shared U.S. user data with the Chinese government or that the Chinese government has asked the app to do so, cybersecurity experts previously told ABC News. In its lawsuit, ByteDance blasts the national security fears as “speculative.”

Rozenshtein, of the University of Minnesota, said the U.S. government may not provide direct evidence of Chinese tampering with TikTok. However, the government will likely argue that it holds substantial evidence for the “component parts” of its claim.

“We know China has engaged in widespread hacking,” Rozenshtein said. “We know China is willing to act in an extremely heavy-handed way to control its private corporations.”

Ultimately, some experts said, the courts will likely defer to the government’s assessment of national security risks and rule in favor of the law.

“The courts don’t want to substitute their own judgment for Congress’ or the president’s,” Rozenshtein said.

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