Legal Analysis: How TikTok's "Sell or Take" Act Can Withstand Court Challenges

On Tuesday, the Senate overwhelmingly approved an aid package for Israel, Ukraine and Taiwan. It also includes a measure to force TikTok to divest its investment, and President Joe Biden has said he will sign the bill. At that time, the U.S. Congress will pass the first major regulation on tech platforms since it began regulating social media in late 2016. TikTok has informed employees that it believes the bill violates its First Amendment rights and intends to challenge the implementation of the law in court.

Today, let's talk about how this legal battle might develop. Interviews with legal scholars suggest that the government will have a hard time proving that its efforts to ban TikTok are constitutional. But they said First Amendment cases are often unpredictable, and that the government's national security claims could eventually lead the Supreme Court to uphold the law.

The First Amendment prohibits the government from passing laws that restrict free speech. With a few exceptions, U.S. elected officials are prohibited from removing a social app if they decide they don't like the content on it.

In the case of TikTok, this was important because members of Congress publicly criticized the site's content. "This is a propaganda machine spreading disinformation under the influence of our country's largest foreign competitor. It was written in an op-ed last year.

They don't just focus on propaganda from China. Members of Congress have also repeatedly accused TikTok of pushing pro-Hamas content related to Israel's war (without evidence). (TikTok denies manipulating referrals in this way).

The Supreme Court has held that Congress cannot ban foreign propaganda, including from China. In Lamont v. General Post Office, the Court considered a law requiring the General Post Office to withhold "communist propaganda" sent by mail. The post office was then asked to send a card to the recipient asking if they wanted the promotional material to be delivered, and the court ultimately ruled that the move had an unconstitutional chilling effect on the speech.

By this logic, if Congress can't even ask people to fill out a form to receive propaganda, then it seems even less likely that the Supreme Court will find that Congress can ban TikTok because claims that TikTok deliberately amplified pro-China or pro-Hamas content remain unsubstantiated.

Evelyn Douek, an assistant professor at Stanford Law School and a First Amendment scholar, said, "One of the basic principles of the First Amendment is that a government cannot ban speech because it doesn't like it, or because it's confident that it will persuade people to accept a point they don't like." "

As a result, the government may not stop its argument on the point that it has the right to ban propaganda.

Another central argument made by Congress during its deliberations on TikTok's ban is that the Chinese government could force ByteDance to hand over user data for surveillance or other nefarious purposes. But scholars say the administration is likely to struggle to make a convincing argument that banning TikTok is necessary to protect Americans in this way.

Alan Z. Rozenshtein, an associate professor of law at the University of Minnesota, wrote in an article in Lawfare magazine on Monday: "If the Chinese government wants Americans' data, they don't need TikTok to get it." It was written in an article published for Lawfare on Monday. "They don't even need to steal. Among developed countries, the United States is notorious for the lack of national data privacy laws. This means that Chinese can buy the same information directly from data brokers and other third-party aggregators as they get TikTok user data."

Given that banning an app used by 170 million Americans would impose significant restrictions on speech, the data privacy argument may feel particularly powerless for the courts.

Genevieve Lakier, a law professor at the University of Chicago, said: "This is the worst means imaginable to protect user privacy, as it would shut down the entire vibrant platform or require it to divest its capital." She said that even if ByteDance was willing to divest from TikTok and keep the platform as it is, forcing it to do so could be considered an unconstitutional violation of its right to free speech. "

"If we think that part of the reason owners own these platforms is that they want to express a certain point of view, then that's really saying 'shut up,'" she said. "

This leads to the argument that the government may be shouting in court: banning TikTok is necessary to protect national security. The argument is that China is an adversary of the United States and may one day try to use its control over major news and information networks like TikTok, so Congress has an urgent interest in preventing China from doing so.

Rozenstein said in an interview that of all the arguments the government could make, this one is most likely to resonate with the Supreme Court.

"The government can't just say 'national security' and do whatever it wants," he said. But the courts – including the Supreme Court – have given the government more leeway in First Amendment cases concerning national security."

What arguments will the government make? Rozenstein is expected to discuss China's aggressive manipulation of domestic media, including sweeping censorship and propaganda efforts. The U.S. State Department released a comprehensive report last year that concluded that China "employs all kinds of deception and coercion."

At the same time, there is no public evidence in Congress that ByteDance or TikTok manipulated recommendation algorithms to spread pro-China propaganda or otherwise undermine national security.

For the ban to take effect, the government must first prove that the ban has nothing to do with the content of TikTok's speech. Assuming that the courts accept this argument, they are likely to resort to so-called "intermediary review" in which the government considers this to be a privacy and security issue. In such cases, the government usually has to provide evidence that the threat is large enough to justify the removal of a significant speech platform.

"Over the past hundred years, the First Amendment case has made it clear that even when it regulates speech in a content-neutral way, governments need to have very good evidence to prove what they do," Lakiel said. The point of the intermediary review is that we can't take the government's word for it – it has to show what it does."

Another advantage of TikTok is the Texas project, which spent $1.5 billion to transfer all U.S. user data to the U.S., with Oracle reviewing the data for compliance. Courts may see this as a goodwill move to address congressional data privacy and security concerns, and the government officials involved in the Texas project negotiations have never publicly stated why this is not enough.

"I wouldn't be surprised at all if TikTok was waving 'Plan Texas' in court – the government has to give a good answer," Rozenstein said. "

The history of First Amendment jurisprudence shows that congressional efforts to ban TikTok are likely to be overturned. However, all the academics I spoke to said they thought the case was difficult to predict. First Amendment cases are generally unpredictable, they say, and the current Supreme Court has often shown disregard for precedent.

"Unfortunately, when it comes to national security, fundamental constitutional rights tend to give way, and we do see courts bow down in the face of pressure," Duque said. So there is absolutely uncertainty. Even if I'm 110% sure that the precedent says the same thing, that doesn't mean I'm 100% sure that the court will say so. "

Rozenstein said that if the verdict was upheld, it was likely because the Supreme Court was generally reluctant to weaken Congress on foreign policy issues. But doing so could have a bigger impact than Congress intends to do here: setting a precedent for aliens not to be protected by the First Amendment.

"Are we really going to say that people who speak foreign languages don't have any rights?" she said, "These are the questions that arise from this." "