TikTok has made good on its promise to challenge a new law signed by President Joe Biden that could result in the video app being banned in the United States.
The company, a subsidiary of Chinese tech giant ByteDance, filed for an injunction Tuesday to stop the U.S. government from enforcing the law, calling it “unconstitutional” on the grounds of the First Amendment and other grounds.
TikTok’s new lawsuit alleges that U.S. law undermines the company’s right to protected speech. It also claims that the law infringes on its users’ rights of expression.
But the social media giant may realize that its legal basis is not very strong, some experts say. The main reason: its ownership by a Chinese company, ByteDance.
“Generally speaking, foreign companies do not have constitutional rights,” said Jamil Jaffer, director of the Antonin Scalia Law School at George Mason University National Security Institute.
Again Wilson Freemanlawyer for the Pacific Legal Foundation, said his initial reaction to TikTok’s complaint was that it was a challenge the government needed to take “very seriously.”
“I’m not surprised that they are leading with the First Amendment claim, because it appears to be by far the strongest of the four claims,” Freeman said.
“You can never predict with litigation, but I wouldn’t be at all surprised if TikTok wins on this claim.”
One potential problem with TikTok’s First Amendment strategy is that a court could reject the idea that the platform’s content counts as TikTok or ByteDance’s own speech.
If a court validated a First Amendment claim, the company would then have to overcome another hurdle: proving that the new law is intended to influence the views expressed by TikTok — not its stated goal of protecting national security and privacy users.
The company argued that it was not under Chinese control.
“ByteDance is not owned or controlled by the Chinese government. It is a private company,” TikTok CEO Shou Zi Chew told members of Congress in March 2023.
In its complaint, TikTok confirmed a Wall Street Journal report that a sale or divestiture would require approval from the Chinese government.
The Chinese government “has made clear that it will not allow divestment from the recommendation engine that is key to TikTok’s success in the United States.”
Free Speech Rights of TikTok Users
A stronger, but still tenuous, First Amendment claim could come from any of TikTok’s 170 million U.S. users, who could also argue that their right to express their views is being violated.
That argument worked in Montana when a U.S. district court temporarily blocked enforcement of a state ban on TikTok, siding with the app’s U.S. users. A judge agreed that the state had the right to regulate a certain level of expression, but said it did so too broadly to withstand constitutional scrutiny.
The new American law adopted by Congress could be sufficiently adapted to avoid…
