Constitutionality of a TikTok Ban: TikTok Inc. v. Garland

By: Brandon Brillant, Vol. 23 Staff Writer

The rise of social media platforms over the past two decades has shaken up the digital landscape changing the way millions around the world engage with content. In 2018, TikTok burst into this thriving market with a powerful algorithm fueling its rapid expansion. The backlash to TikTok was swift as world leaders recognized the dangers posed by the app’s links to the Chinese government, and in 2024, that backlash reached the United States.

Background

On April 24^th, 2024, President Joe Biden signed a bill into law that would compel the divestment of the social media giant TikTok from its parent company, ByteDance, within the next nine months or be banned from the United States market. The bill does allow the U.S. President to exercise a one-time 90-day postponement so long as a certified divestment plan is in place with “significant progress” made toward its execution. The bill’s passage aligns with mounting bipartisan concern over potential Chinese government access to the data of more than 170 million U.S. users through TikTok. The CEO of TikTok, Shou Chew, immediately responded to the bill’s passage in a public statement labeling it an outright “ban” and vowing that the company would vehemently oppose it in court. TikTok kept this promise, and on September 16^th, oral arguments were heard before the U.S. Court of Appeals for the D.C. Circuit in TikTok Inc. v. Garland to consider the constitutionality of the bill. While the decision now rests in that court’s hands, we should consider both sides’ arguments regarding the divestment from the perspective of the First Amendment. 

TikTok & Content Creator’s Arguments Against Divestment from ByteDance

Legal scholars have relied heavily upon the First Amendment legal test of “strict scrutiny” in advocating against the bill. In the context of the First Amendment, “strict scrutiny” permits content and viewpoint-based restrictions on protected speech so long as there is a compelling government interest in doing so and the proposed solution is achieved through the narrowest (least restrictive) available means.

Advocates for TikTok have pointed to the company’s “Project Texas” as compelling evidence that these means – banning TikTok – do not justify the proposed ends – preventing Chinese interference and data collection. Project Texas is a restructuring initiative by which TikTok has invested more than a billion dollars to shift American user data to Oracle cloud servers as well as outsourcing their data security checks and balances to Oracle employees. This transfer would purportedly isolate American user data from foreign interference. As discussed by Ryan Calo, a professor at the University of Washington’s School of Law, TikTok’s “good faith effort” to alleviate governmental fears through Project Texas shows that the bill goes far beyond the necessary precautions to survive “strict scrutiny,” as the government’s interests can be achieved without compelled divestment or implementation of a total ban.

Jeffrey Fisher, counsel for TikTok content creators before the D.C. Circuit, argued that although it is a foreign company, TikTok still deserves individual speech rights afforded by the First Amendment. Mr. Fisher urged the court to look at the historical precedent that the “notion that a foreign adversary is going to spread its ideas about political issues and social issues . . . has never in our history been a basis for suppressing speech in this country, even of [] foreign governments, let alone of American speakers speaking on their own terms to other Americans.” While the D.C. Circuit questioned the legitimacy of this argument, it presents yet another avenue for TikTok to evade the ban on First Amendment grounds.

Government’s Argument for TikTok’s Divestment from ByteDance

The government’s argument in favor of the bill hinges on the public policy interest in preserving the data privacy of American citizens and on the theory that content manipulation by ByteDance poses an existential threat to national security sufficient to warrant curbing TikTok’s First Amendment rights. The government’s lawyer, Daniel Tenny, argued in front of the D.C. Circuit that ByteDance, not its subsidiary TikTok, is really controlling the reigns of the algorithm and is doing so with substantial influence brought to bear by the Chinese government. At present, China is more than just a foreign country; it is a geopolitical adversary in the eyes of this administration and the incoming Trump administration, which warrants extraordinary restrictions on their access to the eyes and minds of American consumers.

Regarding the restriction a TikTok ban would have on the speech of content producers, the government argues that it is not an “excessive interference” because there are ample other forums available to disseminate their same content and messages. Social media platforms like Instagram, X, and Facebook will obviously remain available for posting the same content currently circulated on TikTok. While certainly flawed, these platforms present no questions about the integrity of their data privacy systems or national loyalty by connection with a foreign adversary.

Conclusion

While the impending decision of the D.C. Circuit in this case looms large, attention is beginning to shift towards the Supreme Court and whether the Justices will seek to weigh in on the pressing First Amendment questions at hand in the case. The re-election of Donald Trump, who has played both the role of opponent and advocate of TikTok, further muddles the issue. Most recently, one of Trump’s advisors voiced opposition to the bill arguing “there are many ways to hold China to account outside alienating 180 million U.S. users each month.” Assuming the Trump administration decides to embrace this position, TikTok will likely avoid an outright ban, with the case dissipating before it reaches the nation’s highest court.