TikTok has made good on its promise to challenge a new law signed by President Joe Biden that could lead to a ban on the video app in the United States.
The company, a subsidiary of Chinese tech giant ByteDance, on Tuesday sought an injunction to prevent the U.S. government from enforcing the law, calling it “unconstitutional” on First Amendment and other grounds.
TikTok's new lawsuit claims that U.S. law violates the company's right to protect speech. They also argue that the law violates users' speech rights.
But some experts say the social media giant may prove to be on less than solid legal footing. The main reason is its ownership by Chinese company ByteDance.
“Generally speaking, foreign companies have no constitutional rights,” said Jamil Jaffer, director of the Antonin Scalia School of Law at George Mason University's National Security Institute.
But Wilson Freeman, a lawyer with the Pacific Legal Foundation, said his initial reaction to TikTok's allegations was that this was an issue that the government had to take “very seriously.”
“I'm not surprised that they led with the First Amendment claim, because it seems to be the strongest of the four so far,” Freeman said.
“You can never predict in a lawsuit, but I wouldn't be surprised at all if TikTok prevailed on its claims.”
One potential problem with TikTok's First Amendment strategy is that a court could reject the idea that content on the platform constitutes TikTok or ByteDance's own speech.
If the court upholds the First Amendment claim, the company will have to overcome yet another hurdle. It said by proving that the new law was aimed at influencing the views expressed by TikTok, and not TikTok's stated purpose of protecting national security and user privacy. be.
The company insists it is not under Chinese control.
TikTok CEO Shou Zi Chew testified to members of Congress in March 2023 that “ByteDance is not owned or controlled by the Chinese government. It is a private company.”
In its complaint, TikTok acknowledged a Wall Street Journal report that any sale or sale would require approval from the Chinese government.
Furthermore, the Chinese government has “made clear that it will not allow the sale of its recommendation engine, which is the key to TikTok's success in the United States.”
TikTok users' right to free speech
One of the 170 million TikTok users in the U.S. could make a stronger but still weak argument about the First Amendment, saying they too have a right to express their views. You may claim that you have been infringed.
That argument worked in Montana when a U.S. district court sided with TikTok's U.S. users and temporarily blocked the state from enforcing the ban. The justices acknowledged that states have the right to regulate speech to some extent, but said the scope was too broad to withstand constitutional scrutiny.
Brian Marks, a lawyer and senior economics lecturer at the University of New Haven, said new U.S. laws passed by Congress may be well-tailored to avoid a similar fate.
“I don't know that the users' First Amendment claims will necessarily prevail,” Marks said.
That's because “users still have access to platforms where they can speak out, like Instagram (META), Facebook, and Twitter.”
Jaffer agreed that these competing platforms are probably good alternatives. The Constitution guarantees the right to speech only in public spaces, not in private forums such as those provided by corporations.
“For a court to hold that people have the right to access and speak in private forums, especially those controlled by foreign companies, would be a significant expansion of the First Amendment,” Jaffer said. said.
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Another weaker argument, experts say, is TikTok's new lawsuit that the new U.S. law violates the Constitution's prohibition on achievement laws, also known as ex post facto laws.
Such laws criminalize previously legal activities and retroactively punish violators for past actions.
“Several performance claims lawsuits have been filed over the years, none of which have been successful,” Freeman said. “I highly doubt that [TikTok] I think we will win on the claim for notes of achievement, but that is a possibility.”
Experts said that to withstand such a challenge, the government needs to demonstrate that the law has a non-punitive purpose.
Congress says the purpose of the law is not to punish TikTok, but to protect Americans.
“The question is whether that's actually true,” Freeman said.
Chinese telecommunications giant Huawei tried unsuccessfully to override the U.S. law on these grounds.
The company filed a lawsuit against the U.S. government, alleging that Congress abused its power by authorizing the National Defense Authorization Act, which barred the federal government from purchasing Huawei communications equipment and services.
The U.S. District Court for the Eastern District of Texas ruled against Huawei, ruling that although the law named Huawei, it was not punitive because it applied only to Huawei's future actions. was lowered.
But the company persuaded the court that the Constitution's prohibition on achievement laws protects U.S. entities in addition to U.S. individuals.
“Taking Clause”
There are other claims that TikTok is making in its new lawsuit, and it will likely face a lot of backlash.
First, the government violated the Constitution's expropriation clause, which states that the government cannot claim ownership of private property without just compensation.
The other involves TikTok's claims under the Equal Protection Clause, which requires that the nation's laws apply equally to U.S. citizens and entities.
Freeman is skeptical about the application of the taking clause.
“I don't know if there's a share here,” Freeman said. “The government is just banning certain products.”
Marks said the counterargument to claims that the government violates equal protection is that the United States often penalizes foreign companies from a national security perspective. One example is tariffs on specific companies or industries, he explained.
Ultimately, Marks said, U.S. courts will look for facts that identify Congress' true intent in passing divestment laws and weigh that purpose against viable constitutional protections raised by TikTok and its users. He said he was deaf.
“That's a big tent umbrella,” Marks said. “And I would question that.”
Alexis Keenan is a legal reporter at Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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