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TikTok vows to take US ban bill to the courts. It faces an uphill climb.

TikTok has vowed to challenge in court a new law that could result in a ban of the video app in the US, calling the bill "unconstitutional."

But the social media giant could find that it is on less-than-solid legal ground, according to experts. The main reason: its ownership by a Chinese company, ByteDance.

"As a general matter, foreign companies don't have constitutional rights," said Jamil Jaffer, director of the Antonin Scalia Law School at George Mason University’s National Security Institute.

Foreign companies and people may gain some constitutional rights when they enter the US, Jaffer said, yet he doubts that a federal court would afford ByteDance carte blanche constitutional protections.

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TikTok could argue that the new law signed Wednesday by President Joe Biden infringes on the company’s free speech, as it has indicated it will do in court.

FILE - The TikTok Inc. building is seen in Culver City, Calif., March 17, 2023. The House has passed legislation Saturday, April 20, 2024, to ban TikTok in the U.S. if its China-based owner doesn't sell its stake, sending it to the Senate as part of a larger package of bills that would send aid to Ukraine and Israel. House Republicans' decision to add the TikTok bill to the foreign aid package fast-tracked the legislation after it had stalled in the Senate. The aid bill is a priority for President Joe Biden that has broad congressional support. (AP Photo/Damian Dovarganes, File)
A TikTok Inc. building in Culver City, Calif. (AP Photo/Damian Dovarganes, File) (ASSOCIATED PRESS)

But one problem with that strategy is that a court could shoot down the idea that content on the platform qualifies as TikTok’s or ByteDance’s own speech.

If a court did validate a First Amendment claim, the company would then have to get over yet another hurdle: proving the new law is intended to influence the viewpoints expressed by TikTok — and not its stated purpose of protecting national security and user privacy.

The company has argued that it is not under Chinese control.

"ByteDance is not owned or controlled by the Chinese government. It is a private company," TikTok CEO Shou Zi Chew testified to members of Congress in March 2023.

That same day, The Wall Street Journal reported that China’s Commerce Ministry said a sale or divestiture of TikTok would require the Chinese government's approval.

A stronger, yet still tenuous, First Amendment claim could come from one of TikTok’s 170 million US users, who may also argue their rights to express viewpoints are being violated.

That argument worked in Montana when a US District Court temporarily blocked enforcement of a state ban on TikTok, siding with the app's American users. A judge acknowledged the state was entitled to regulate some level of speech but said it did so too broadly to withstand constitutional scrutiny.

The new US law passed by Congress this week may be tailored enough to avoid a similar fate, according to University of New Haven senior economics lecturer and lawyer Brian Marks.

A TikTok content creator, speaks to reporters outside the U.S. Capitol, Tuesday, April 23, 2024, in Washington, as Senators prepare to consider legislation that would force TikTok's China-based parent company to sell the social media platform under the threat of a ban, a contentious move by U.S. lawmakers. (AP Photo/Mariam Zuhaib)
A TikTok content creator speaks to reporters outside the Capitol on Tuesday. (AP Photo/Mariam Zuhaib) (ASSOCIATED PRESS)

"I'm not so sure the user's First Amendment argument will necessarily win the day," Marks said.

That’s "because the users still have access to platforms where they can provide speech" such as Instagram (META), Facebook, and Twitter.

Jaffer agreed that those competing platforms are likely adequate alternatives. The Constitution guarantees the right to speech only in public forums and not in private forums such as those provided by corporations.

"It would be a significant extension of First Amendment law for the courts to say that people have a right to access or speak on a private forum, particularly one controlled by a foreign company," Jaffer said.

Ex post facto

Another still weaker claim, the experts said, is for TikTok to argue that the new US law violates the Constitution’s prohibition against bills of attainder, also known as ex post facto laws.

Such laws deem previously legal activity as illegal and then reach back in time to punish violators for past actions.

"Several bills of attainder cases have been brought over the years, and none of them have been successful," Wilson Freeman, an attorney for Pacific Legal Foundation, said. "I would be very skeptical that [TikTok] would win on a bill of attainder claim, but it's possible."

To withstand such a challenge, the experts said, the government has to show that the law has a nonpunitive purpose.

According to Congress, the law’s intent is not to punish TikTok but to protect Americans.

"So the question is whether or not that’s actually true," Freeman said.

Chinese telecom giant Huawei tried and failed to invalidate a US law on those grounds.

In a suit against the US government, the company argued that Congress abused its power by authorizing the National Defense Authorization Act, which prohibited the federal government from purchasing Huawei’s telecom equipment and services.

Texas’s federal District Court for the eastern district ruled against Huawei, finding that although the law singled out Huawei, it wasn't punitive because it applied only to future Huawei actions.

However, the company did persuade the court that the Constitution’s prohibition against bills of attainder offered protection to US business entities, in addition to US individuals.

There are other possible arguments TikTok could make.

It could allege the government violated the Constitution's Takings Clause, which says the government cannot assert ownership over private property without just compensation. It could also cite the Equal Protection Clause, which requires that the nation’s laws be applied equally to US citizens and entities.

Freeman is skeptical about the Takings Clause application.

"I don’t know that there are takings here," Freeman said. "The government is just banning a particular product."

A TikTok content creator, sits outside the U.S. Capitol, Tuesday, April 23, 2024, in Washington as Senators prepare to consider legislation that would force TikTok's China-based parent company to sell the social media platform under the threat of a ban, a contentious move by U.S. lawmakers. (AP Photo/Mariam Zuhaib)
A TikTok content creator sits outside the U.S. Capitol on Tuesday. (AP Photo/Mariam Zuhaib) (ASSOCIATED PRESS)

The counterargument to a claim that the government is violating equal protection, Marks said, is that the US often disadvantages foreign entities in the interest of national security. Tariffs on particular companies and industries are one example, he explained.

Ultimately, Marks said, US courts will look for facts that identify Congress's true intention in passing the divestiture law and weigh those objectives against any viable constitutional protections that TikTok or its users raise.

"That’s the big tent umbrella," Marks said. "And I would question that."

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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