TikTok is taking the US to court to stop its potential ban
Kent Nishimura / Los Angeles Times via Getty Images
- TikTok is suing the US government over its new law that forces a sale or ban of the app.
- The company has argued that the law violates its users' First Amendment rights.
- Experts said a legal fight weighing free speech against national-security interests is a coin toss.
TikTok promised to fight its potential ban in the US — and now the social-media giant has made it official.
TikTok and its parent company, ByteDance, sued the federal government on Tuesday to halt a nationwide ban on the app, according to a petition filed by the company on May 7.
The bill, which was bundled with foreign aid and signed into law by President Joe Biden on April 24, gives ByteDance nine months to a year to sell or spin off TikTok's American assets or face a ban from US app stores.
The legislation specifically mentioned TikTok and ByteDance but could affect other apps with ties to China, Russia, or other countries that the US considers foreign adversaries.
State and federal politicians have spent years trying to assert greater control over TikTok's US operations.
Politicians fear that ByteDance — which is headquartered in Beijing — could be compelled to share US user data with the Chinese Communist Party or run influence operations on its behalf.
TikTok has denied both these claims and the US government has yet to present formal evidence that either action has occurred.
TikTok's legal arguments are based on the First Amendment, which says that Congress can't pass a law that inhibits free speech. TikTok argues in the suit that the bill — called the Protecting Americans from Foreign Adversary Controlled Applications Act — deprives the app's 170 million American users of their First Amendment rights.
TikTok also said in the petition that selling the app would be "simply not possible."
Legal scholars told Business Insider that well-articulated First Amendment arguments tend to prevail in court but Congress' national-security concerns could ultimately win out.
"The First Amendment is the trump card that basically allows you to prevail if you can plausibly make a First Amendment argument," G.S. Hans, an associate clinical professor of law at Cornell Law School and associate director of its First Amendment Clinic, told BI. "National security also is a trump card, and the government often wins when it claims that. The question for me is, 'Which trump card does the court think is more valuable?'"
TikTok's case will be heard in the US Court of Appeals for the DC Circuit. Matthew Schettenhelm, a senior litigation analyst at Bloomberg Intelligence, told BI that this appellate court tends to have deference to Congress on national-security issues.
"National security is pretty much at the top of the list of those things where the DC Circuit judges are going to tread very carefully before they interfere," Schettenhelm said. He estimated that the law had a 70% chance of surviving a legal challenge.
The US is not the first country to target TikTok because a Chinese company owns it. India banned the app in 2020 amid its geopolitical dispute with China.
TikTok referred BI to the petition when asked for comment.
May 7, 2024, 12:58 p.m. ET: This story has been updated with additional details.