To oppose the proposed ban legislation TikToks primary strategy hinges, on mounting a challenge based on the First Amendment.

In 2020 when then President Donald Trump attempted to ban the Chinese owned app WeChat, a group of WeChat users joined forces to file a lawsuit. Their argument centered on the significance of WeChat as a communication platform for elderly Chinese Americans. This approach proved successful leading to the court halting the ban. Now TikTok, currently facing prohibition under a bill pending in the Senate aims to replicate WeChats victory.
Legal experts are optimistic about TikToks chances. They assert that users of TikTok have the right to express themselves and access information through the app. Despite concerns raised by some lawmakers about dissemination of government propaganda via TikTok lawyers argue that such claims do not warrant a ban, under the protections afforded by the First Amendment.

Lawyers are suggesting that TikTok might have an argument, under the First Amendment if it faces a ban bill. While the claim that the bill could be considered unconstitutional as a bill of attainder may not stand experts believe that Congress should consider passing a privacy bill to prevent disputes.

Evelyn Douek, a professor at Stanford Law School who specializes in speech regulation pointed out that labeling TikTok as a platform for Chinese propaganda raises First Amendment concerns. She highlighted existing case law that protects peoples right to access propaganda if they choose to do

TikToks future hinges on a House of Representatives bill, which passed with support and is currently under consideration by the Senate. If the bill progresses and TikTok decides to take action lawyers suggest that apart, from First Amendment arguments TikTok could challenge it on grounds of lack of process claiming it unfairly impacts its business without substantial evidence.

To avoid battles lawyers recommend that Congress enact comprehensive privacy legislation regulating the data collection practices of all social media platforms.
Regulation of this nature has faced obstacles, in Congress on occasions in the past although there have been indications of progress. Week amidst years of inertia concerning privacy laws the House approved a privacy measure unanimously aimed at preventing data brokers from selling individuals data to countries like China and Russia labeled as “foreign adversaries.” This legislation has now moved forward to the Senate.

The bill concerning TikTok that was passed by the House sets a deadline of 165 days for ByteDance, TikToks parent company to sell the platform. Failure to comply would result in app stores being prohibited from offering TikTok and web service providers from hosting it in the U.S. essentially banning its presence.

Supporters of the bill argue that it distinguishes itself from attempts at bans by offering ByteDance the opportunity to sell TikTok rather than facing an outright ban. However legal experts express doubts about whether this distinction will be significant.

Furthermore China has expressed opposition, to selling TikToks algorithm suggesting that any sale of TikTok would likely exclude the algorithm for its recommendation system.
Any American corporation looking to make a purchase in the tens of billions would probably come under scrutiny in the United States. Moreover legal experts have noted that the potential ban, on TikTok if ByteDance refuses to sell it essentially amounts to a ban according to lawyers.

Ramya Krishnan, a staff attorney at the Knight First Amendment Institute highlighted that the government cannot indirectly do what it is prohibited from doing. She pointed out that the bill could be seen as a ban since it enforces a ban in case of non divestment.

In Montana a federal judge stopped an attempt to ban TikTok on First Amendment grounds.

A spokesperson for TikTok did not provide any comments upon request.

Legal experts suggest that arguing based on First Amendment rights is a approach for TikTok than asserting that the bill is unconstitutional as a bill of attainder – which means unfairly punishing an individual or entity. However this argument may not hold up in court as forced divestment or banning may not meet the definition of punishment set by courts according to Matt Steilen, a law professor, at the University of Buffalo specializing in bills of attainder.The comparison was made between the bill and a previous bill that targeted Huawei, a Chinese tech company. The outcome of the Huawei case might not favor TikTok if it were to use a defense strategy.

While there are distinctions, between the two cases. The Huawei bill banned purchases while the TikTok bill would mandate a sale. The lack of precedent on bills of attainder could give courts leeway in interpreting the TikTok bill.

Steilen expressed skepticism about the likelihood of the DC circuit ruling that thiss a bill of attainder.

In contrast TikToks First Amendment argument appears stronger. For any speech restriction to be upheld the government must demonstrate an interest. Show that their proposed measure is the least restrictive option possible as per legal experts.

The current bill would likely face challenges on both these fronts. Experts noted that Congress has yet to provide an explanation, on how TikTok poses security threats that stand up to legal scrutiny.
“Maybe there’s something, about TikTok being this surveillance system but the truth is we just don’t have all the facts ” remarked Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy. “It’s really tough to weigh the First Amendment concerns in this situation without having a discussion about it.”

A ranking government official mentioned that the Department of Justice views the bill as a way to limit ownership than restrict speech. The department is worried about Chinese government influence on TikToks data, algorithm, source code and employees based in China. It’s unclear whether these concerns are based on events or are more speculative.

Lawmakers have raised worries about data security as a justification for banning TikTok. Democratic Representative Raja Krishnamoorthi, who supports the bill pointed out in an interview that employees of ByteDance in China had accessed user data and some even spied on American journalists using that information. (ByteDance stated that these actions were unauthorized and the employees responsible were terminated.)

However, with these arguments it’s uncertain if they would pass muster under First Amendment review.
The government would have to prove that requiring TikTok to be sold or banned was the step to tackle those security worries. This would be a challenge, as banning TikTok could impact an amount of expression according to experts.

Legal professionals highlighted that China could access data on users through means, such as utilizing American owned social media platforms like Facebook, similar, to what Russia was accused of doing in 2016.

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