TikTok is suing the US government over new bipartisan federal legislation that would require it to separate from its Chinese government-controlled parent company. Both the facts and the law indicate that the case should fail. TikTok bases its claims on false assertions that it is a champion of free speech and that the First Amendment protects its legal ties to the Chinese Communist Party.
These are lies. The truth is that the First Amendment protects Americans’ right to free speech, not the right of TikTok to be owned by the Chinese Communist Party.
If they refuse to sell, it will be up to ByteDance and the Chinese Communist Party to decide whether TikTok should be banned in the U.S. The decision is not up to the U.S. government.
No one should be fooled by TikTok’s cynical claims to defend freedom of speech. Company needed This is to comply with the orders of the Chinese Communist Party. The Chinese government owns part of TikTok’s parent company, ByteDance, Employing Chinese Communist Party officials As censor in chief, TikTok has spyrepetition Lying to Congressand Exploiting America’s ChildrenThe facts clearly refute any claim that the company is using American freedoms against our national security.
TikTok’s legal claims are also without merit. The company continues to falsely claim that the new federal law is “prohibitive.” That’s not true. TikTok could continue to operate in the U.S. if it were sold to a company not controlled by a hostile government. But because the Chinese government continues to lie about federal law, Ban the sale of TikTok’s algorithms This only shows that national security concerns about TikTok’s inner workings are legitimate.
To be sure, TikTok has already had some victories in US courts — the company survived an attempted ban by the Trump administration and recently won a preliminary court fight against a state-level ban in Montana — but none of these cases suggest that TikTok is likely to prevail in a constitutional challenge to the new federal law.
Trump Administration Attempts to ban TikTok in 2020 They use a sanctions law called the International Emergency Economic Powers Act (IEEPA). But IEEPA is outdated and has not kept up with modern technological threats. IEEPA contains exceptions that were originally intended to prevent the US government from banning literature.
The law Amended in 1994 In the early days of the internet, courts interpreted the term to mean any data. TikTok was easy. You can use this loophole The goal is to convince the court that IEEPA won’t be used against the company. The case wasn’t decided on free speech grounds — IEEPA is simply the wrong tool for the job, and it needs to be updated to adapt to an era in which America’s biggest enemies control the world’s tech companies.
Montana’s attempt to ban TikTok was blocked by a federal court last year. The court cited the First Amendment as the basis for its decision, but the ruling was based on its view that Montana’s national security concerns were an infringement of federal power. This led the court to conclude that the ban did not meet any relevant standards of review, and TikTok won on constitutional grounds.
The ruling also meant that Montana could not meet the First Amendment’s “balance” requirement — a close fit between the restriction and its original purpose — because the court rejected Montana’s national security interests. TikTok could not replicate this result in its challenge to the federal law.
More significantly, the Montana court also allocated part of its analysis to whether the Montana law left “sufficient alternative channels of communication.” Surprisingly, the court found that TikTok’s purportedly unique features were enough to trigger constitutional protections. The court’s analysis gives social media platforms, including those controlled by hostile foreign governments, a distinctly privileged status under First Amendment jurisprudence, suggesting that government action to shut down such platforms may violate the First Amendment regardless of legitimate national security concerns.
If the Montana ruling is upheld in future cases, it would be a big win for social media companies. The ruling denied TikTok a clear national security threat, so TikTok cannot expect to replicate that result on appeal. Congress thoroughly researched those threats in crafting the new law, but it is structured differently. Federal law requires divestment, rather than simply banning the apps outright, as the Montana ruling sought to do.
If TikTok refuses to divest, it will be up to ByteDance and the Chinese Communist Party to decide whether to ban it in the U.S. Because that decision is not made by the U.S. government, it becomes even less likely that other judges will adopt the Montana court’s conclusion.
After all, it is absurd that a social media platform controlled and censored by the Chinese Communist Party can neutralize national security activities by claiming to be an “essential” purveyor of free speech. Thankfully, this cynical attempt to flout America’s constitutional freedoms is likely to be defeated in any lawsuit filed by TikTok. The days of TikTok are coming to an end.
