Can the First Amendment Save TikTok?

On Wednesday, President Joe Biden signed a law that could effectively ban TikTok if the company does not divest from its Chinese owner ByteDance in the next twelve months. But the law, which sped through the House and Senate, could face a significant uphill battle in US courts for potentially violating the First Amendment rights of both the company and its users.

In a statement, a TikTok spokesperson said “this unconstitutional law is a TikTok ban, and we will challenge it in court. We believe the facts and the law are clearly on our side, and we will ultimately prevail.”

TikTok has argued that prior attempts to ban the app ran afoul of the First Amendment. Last year, the state of Montana passed a TikTok ban that was blocked by a federal judge before it could go into effect. US District Judge Donald Molloy wrote that TikTok “had established a likelihood of irreparable harm” if the ban was enacted, both to the First Amendment rights of its users and to the ability of creators to make money.

Some experts say that the federal government could run into some of these same traps.

“Assuming the combination that the divestiture does not go through, and the app is actually banned, that means that Americans who wish to access this cannot do so,” Nadine Farid Johnson, policy director at the Knight Institute, tells WIRED. Banning the app outright would go too far, Johnson says, and “wouldn’t be a tailored response that addresses the vendors.”

“In all cases, I think that where this legislation is going to fail is that it’s burdening so much more speech than is necessary,” says Jenna Leventoff, senior policy counsel at the ACLU.

If TikTok or its creators were to sue the government for violating the First Amendment, experts believe they could make a solid argument. John Morris, principal at the Internet Society, says that the case in Montana and a 2020 case brought by users of WeChat following a Trump administration executive order to ban the Chinese chat app, provide a blueprint for how the courts may view TikTok’s legal challenge.

“In that case, what appeared to be very relevant to the court was the fact that the WeChat platform was a critical platform for communications of the users of WeChat, and they really didn’t have a good alternative,” Morris says. “If you’re looking at TikTok, many of the users of TikTok also predominantly use that platform to interact with other people.”

In both the WeChat case and the Montana case, both the companies and their users were parties to the case, meaning that both “speakers” and “listeners” were claiming that their speech had been violated.

TikTok has found itself in the crosshairs of US regulations for several years due to concerns about surveillance by the Chinese government. In 2020, former President Donald Trump issued an executive order to ban the app, calling it a threat to the “the national security, foreign policy, and economy of the United States.” In 2023, Democratic Senator Mark Warner introduced the Restrict Act, which would allow the office of the commerce secretary to review and ban certain apps. Lawmakers have expressed concern that TikTok could be spying on its US users on behalf of the Chinese government due to a law that allows the Chinese government to compel companies, organizations, and individuals to work with the state on matters of national intelligence.