On Tuesday, TikTok and its Chinese parent company ByteDance filed a high-stakes lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit. The suit was filed against the U.S. government, challenging a new law that would force ByteDance to sell TikTok’s American operations or face a nationwide ban on the popular social media app.
At the heart of the legal battle is the claim that this law, known as the Protecting Americans from Foreign Adversaries Act, violates the First Amendment rights of TikTok’s 102 million users in the United States.
In their lawsuit, TikTok and ByteDance argue that the law’s mandate to divest the app’s U.S. business within one year or face a complete shutdown is an unconstitutional infringement on free speech and expression.
They contend that TikTok has become a vital platform for Americans to share content, communicate and engage in public discourse (as well as meme-worthy cat videos). Banning the app, they argue, would deprive users of their ability to participate in this digital town square in which they exercise their fundamental free speech rights.
As to this first part of their claim, it’s pretty tough to make a cogent legal argument that TikTok/ByteDance isn’t right. Whether you’re a compensated influencer or simply a casual user, your use of TikTok is an expression, on social (that’s the key word) media, of your views. By essentially killing off TikTok in the U.S., which the law would do if it would actually go into full effect, the government is (choose your legal term of art here) quelling/quashing/hindering/chilling/stopping your ability to express yourself on social media, which is a contemporary form of speech.
The plaintiffs also assert that the government has failed to provide concrete evidence of any genuine national security threat posed by TikTok that would justify such a drastic measure. They claim the law is overly broad and vague, lacking clear guidelines for compliance. ByteDance also argues that even if they find a buyer for TikTok’s U.S. operations, obtaining approval from the Chinese government to sell the app’s powerful content recommendation algorithm could be nearly impossible, which means that the law wouldn’t actually work in a practical sense.
All of this is correct — the only viable buyers for TikTok are going to be legally barred from buying it. There’s a zero percent chance that TikTok’s natural acquirers (Meta, Google, etc.) would be allowed even a sniff of this deal, as their acquiring TikTok would be profoundly anticompetitive. Meta (which already has Instagram) plus TikTok is a straight-up monopoly; it’s a total no-go.
From a legal perspective, this case represents a significant test of the government’s authority to restrict a social media platform on national security grounds, while also respecting the constitutional rights of its users. Constitutional scholars will suggest that the courts will almost surely require the government to demonstrate a clear and imminent threat to national security and that the TikTok ban is the least restrictive means to address it.
Good luck with that.
Part of what the courts would want to see is what other measures the government took to deal with the perceived problems posed by TikTok and its ByteDance parent, how these measures worked, what other remedial measures were taken, etc.
But no other real measures were taken. The government went directly for what was essentially the nuclear option, which is almost certainly not going to survive the scope and depth of scrutiny of not only the U.S. Court of Appeals for the District of Columbia Circuit but probably also, eventually, the actual Supreme Court.
This is, without a doubt, all extremely important legal and societal stuff.
The ultimate decision in the TikTok case will not only set an important precedent on the limits of the government’s power to ban or force the sale of a social media platform, it’s going to answer some important questions about how well the law and the courts understand how, where and even why we communicate today.
This really isn’t about TikTok or ByteDance, or even China — it’s about us. It’s ultimately our behaviors as consumers that are coming under scrutiny here and whether we need a prudent, protective government (or nanny state, depending upon your seat for all of this fine action) to regulate what we do and how we interact over social media.
No matter your perspective, what’s certain is that this new legal filing is going to be extremely closely watched as it unfolds in the coming months, with the future of one of the world’s most popular apps as well as our social media habits and preferences hanging in the balance.
Aron Solomon, JD, is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.
