Critics of the “sell or be banned” ultimatum argue that it violates the First Amendment rights of TikTok users. The Chinese owner of the app, ByteDance, has already vowed to sue, calling the measure unconstitutional.
But the success of the lawsuit is not guaranteed. Opponents of the law, which include advocacy groups such as the American Civil Liberties Union, argue that the government is no closer to justifying a TikTok ban, while others say national security claims may still prevail.
For years, lawmakers on both sides of the party have expressed concerns that Chinese authorities could force ByteDance to hand over US user data or influence Americans by suppressing or promoting certain content on TikTok. The US has yet to provide public evidence to support these claims, but some legal experts say political pressure has nevertheless increased.
Legal experts also stress that if the law is upheld, it could set a precedent that has broader implications for digital media in the United States.
Here’s what you need to know.
Is the TikTok ban unconstitutional?
This is the central question. TikTok and opponents of the law argue that the ban would violate the First Amendment rights of the social media platform’s 170 million U.S. users.
Patrick Toomey, deputy director of the ACLU’s National Security Project, said banning TikTok would “suppress freedom of expression and limit public access” to the platform, which has become a central source of information sharing.
Among the key questions will be whether legislation affects the overall content of speech on TikTok, said Elettra Bietti, an assistant professor of law and computer science at Northeastern University, as content-based restrictions require closer scrutiny.
ByteDance had not yet filed a formal lawsuit by Wednesday evening, but Bietti said she expected the company’s challenge to primarily focus on whether the ban violates those broader free speech rights. There could also be additional litigation involving TikTok’s “commercial entities,” such as companies and influencers who make their living on the platform, she said.
Will TikTok be able to successfully prevent a ban in court?
TikTok expresses confidence in the prospects of the planned challenge.
“Rest assured, we are not going anywhere,” TikTok CEO Shu Chu said in a video response. sent to X Wednesday. “The facts and the Constitution are on our side, and we hope to win again.”
Toomey also said he was optimistic that TikTok could block the measure in court, noting that both users and the company “have extremely strong” First Amendment claims.
“Many calls for a complete ban on TikTok in the US are aimed at scoring political points and are based on anti-China sentiment,” Toomey added. “And to date, these steps to ban TikTok have not been even remotely supported by concrete public evidence.”
However, the future of any lawsuit is difficult to predict, especially in cases of this nature. And from a legal perspective, legal experts say it can be difficult to cite political reasons, even if they are well documented, as grounds for invalidating a law.
The battle could also drag on for some time, with appeals potentially reaching all the way to the Supreme Court, which would likely uphold the law because of its current makeup, said Gus Hurwitz, a senior fellow at the University of Pennsylvania. Carey Law School.
How can the government respond to this challenge?
TikTok’s legal action won’t go without a fight. The government will likely respond with national security claims, which were already widely cited when the legislation passed through Congress.
Toomey argues that the government has not met the high bar required to prove imminent national security risks, but some other legal experts say that is still a strong card to play.
“One of the unfortunate and really frustrating things about national security legislation is that it tends to be a bargaining chip,” Hurwitz said. “Once national security issues come up, they will succeed or not.”
Hurwitz added that he believes there are legitimate national security arguments to be made here. National security is debatable because it is a federal measure, he added. This makes this scenario different from previously unsuccessful state-level laws aimed at banning TikTok. for example in Montana.
But the national security argument is also vulnerable to questions about why TikTok has come under particular scrutiny.
“Personally, I think what TikTok is doing is not very different from other companies based in the US,” Bietti said, pointing to tech giants from Google to Amazon. “The question is, why ban TikTok and not the activities and surveillance carried out by other companies in the United States?”
If the law is upheld, could there be wider implications?
However, legal experts say there could be future consequences beyond TikTok.
The measure was taken as part of a larger $95 billion aid package for Ukraine and Israel. The package also includes a provision that would prohibit data brokers from selling or renting “sensitive personally identifiable data” to North Korea, China, Russia, Iran or entities in those countries.
This has drawn some criticism, including from the ACLU, which argues that the language is written too broadly and could trap journalists and others publishing personal information.
“There is real cause for concern that the use of this law will not end with TikTok,” Toomey said. “Looking at this moment and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to decades of work by the U.S. government to promote an open and secure global Internet.”