Case goes beyond First Amendment
Court challenges may involve more than just the First Amendment. ByteDance could argue that it is being deprived of property under the takings clause, for example.
ByteDance could also argue that the law is a bill of attainder, which is legislation that punishes a specific person or group of people without a trial. The new US law allows for other applications to be designated as being controlled by foreign adversaries, but singles out TikTok and ByteDance by name.
“The fact that TikTok is named by name in the bill is a potential problem. It looks a little bit like a bill of attainder type of problem,” Goldman said.
Law’s bipartisan support makes predictions tricky
The TikTok ban-or-sale bill had support from Republicans and Democrats in Congress. The House Commerce Committee voted 50-0 to approve it in March. The TikTok legislation was later included in a larger appropriations bill that provides aid to Ukraine, Israel, and Taiwan. The Senate voted 79-18 in favor of the legislation package.
Opponents of the TikTok ban-or-sale bill also included both Republicans and Democrats. “This bill cuts across partisan lines, and so I don’t think we can easily assume a partisan outcome from the Supreme Court,” Goldman said.
“Some justices seem to be disposed against technology companies, other justices may be more willing to defer to national security claims, and most of the justices are strongly inclined to protect free expression online,” Chander said. “It is hard to predict if there is a coalition of five justices for or against such a law.”
When asked if any precedents might indicate whether ByteDance is likely to win or lose, Chander pointed to a 1965 ruling that invalidated a US law that imposed restrictions on mailings of “communist political propaganda.” The court challenge involved mail delivery of a Chinese magazine, the Peking Review.
“In Lamont v. PostMaster General, at the height of the Cold War, the Supreme Court sided with free speech against a law seeking to hamper the flow of Chinese propaganda into the United States,” Chander said.
Actions against Huawei not quite the same
The US has previously imposed strict limits on networking and hardware products from Chinese companies such as Huawei. But Goldman and Chander say that justifying the TikTok restriction is more difficult because of the free speech implications.
“The national security interest has to be balanced against the speech interest, which isn’t always at play as obviously with other types of bans of goods or services based on national security grounds. This [TikTok] is a speech product that’s being targeted and it has special considerations that other types of goods and services don’t have,” Goldman said.
As Chander said, “Huawei couldn’t claim that its First Amendment rights were at stake, or the rights of its users. A change in ownership or a ban will have dramatic effect on the speech of both TikTok and its users.”
A court could block the TikTok ban-or-sale provision while upholding laws that address national security problems more broadly. The same bill that requires a sale or ban on TikTok includes another section making it illegal for a data broker to sell or transfer sensitive data to foreign adversaries or entities controlled by foreign adversaries.
“One possibility is a court could uphold the data broker ban and strike down the outright ban of TikTok, saying there was a less restrictive alternative for you to use—and you actually literally used it,” Goldman said.
That is what happened in the Montana case. Judge Molloy’s ruling said “the current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers. This is especially apparent in that the same legislature enacted an entirely separate law that purports to broadly protect consumers’ digital data and privacy.”
ByteDance reportedly prefers leaving US over selling
While TikTok’s case against the US will likely take many months, Goldman said we may get a better sense of the Supreme Court’s views on social media much sooner. The court in February heard oral arguments on Florida and Texas state laws that limit how social media companies can moderate user-generated content.
“It remains unclear how vigorously the Supreme Court will protect users’ First Amendment rights online, and that’s the part I can’t guess,” Goldman said. “But we’re going to get some data about that before we have any court rulings on the congressional TikTok ban.”
If ByteDance loses in court, early indications suggest the company will pull TikTok out of the US instead of selling. ByteDance said this week that reports of it exploring a sale “are untrue,” The Wall Street Journal reported.
A Reuters report says that sources indicate “TikTok owner ByteDance would prefer to shut down its loss-making app rather than sell it if the Chinese company exhausts all legal options to fight legislation to ban the platform from app stores in the US.”