A TikTok Ban Passes, But the Courts Are Next
After years of legislative false starts, a TikTok ban bill has passed Congress. Notionally, the bill uses the threat of a ban to force a sale of the Chinese‐owned app—thus allowing members of Congress to claim that it is not a ban—although the expert consensus is that China would rather stop US operations altogether than allow a sale to an immediate competitor.
The legislation has been remarkably rushed; the bill was introduced in March and passed in April. During that time, no general and open hearings on the bill have been held and no unambiguous evidence of Chinese tampering with US user data has been shared with the public (despite calls from senators to do so).
As Jennifer Huddleston and I have argued previously, Congress has opted for the most extreme regulatory option on the table instead of adopting intermediate measures that could have addressed concerns about data surveillance and algorithmic manipulation.
But that doesn’t mean TikTok is doomed. The company has already signaled that it will challenge the law in court on First Amendment grounds. Given that a TikTok ban would impair the free speech of 170 million Americans, they could have a plausible case. Previously, a federal district judge blocked Montana’s ban of TikTok both on free speech grounds and because proponents offered little evidence of a national security risk beyond a “pervasive undertone of anti‐Chinese sentiment.” The same is true of the federal bill, perhaps even more so.
And rushing the law through Congress might have weakened the legal case for a ban by not waiting for a review by the Committee on Foreign Investment in the United States (CFIUS). The CFIUS has blocked foreign ownership of apps in the past on national security grounds, most notably with the acquisition of the Grindr dating app in 2019. A CFIUS recommendation for TikTok’s divestment from its Chinese owners would have given the law at least the imprimatur of due process. (Although the constitutionality of CFIUS’s recently expanded authority has yet to be upheld in court. The only time a lawsuit has ever been filed over a CFIUS review, the government was forced to settle on unfavorable terms.)
Instead, supporters have defended the law by appealing to precedents from Cold War‐era broadcasting, when foreign ownership of radio and television stations was limited. However, these precedents are unlikely to apply to a TikTok ban because they are rooted in the so‐called “scarcity doctrine,” which was a legal argument based on the natural limits of the electromagnetic spectrum. It was used to justify government licensure and regulation of broadcast speech, a sharp contrast to prohibitions on government interference in print media. But the internet doesn’t rely on scarce spectrum and so the courts have generally treated online speech like print speech rather than like broadcast speech, meaning a far higher degree of protection under the First Amendment.
The clearest legal precedent from the Cold War era actually militates against a TikTok ban. In the 1960s, when Congress restricted American postal access to Chinese communist literature, the US Supreme Court unanimously upheld the right of Americans to consume the speech of their choice, even when it was overt propaganda from the Chinese Communist Party.
American consumers have the constitutional right to choose the speech platform of their choice, even if it is a choice that unnerves the national security apparatus and congressional China hawks.