Challenges to TikTok Raise Free Speech Questions

By Meg Beeson

The Trump Administration’s efforts to force TikTok’s Chinese parent company, Bytedance, to sell the popular social media app has resulted in multiple legal challenges across the country. The legal battle continues as Bytedance has been granted an extension until November 27.

On August 6th, President Trump signed an Executive Order forcing ByteDance to sell its US-based TikTok operations to an American company. If the sale could not be made by November 12th, the app would no longer be available in the app store. The potential ban by the Trump Administration raises concerns over users’ right to free speech.

The Trump administration claims that the app is a threat to national security, but experts currently only see this threat as a hypothetical one. Currently, TikTok poses no more threat of data mining than any other social media app.

“The argument is that Beijing can bring pressure down on these companies (like TikTok) if they want access to their data,” James Griffiths, an international journalist with CNN, said in an interview with NPR.

Despite the threat only being hypothetical, the Trump administration used it to justify the Executive Order through the International Emergency Economic Powers Act (IEEPA). The IEEPA authorizes the President to regulate foreign economic transactions when the President declares a national emergency to deal with any unusual and extraordinary threat to the United States. The use of this Executive Order requires very little if any evidence because Congress gave the President broad discretion to use Executive Orders under the IEEPA, but Executive Orders are not unobjectionable.

“When the President’s use of this power infringes impermissibly on an individual right, Congress or a court may invalidate the act,” Bradley Joondeph, Professor at Constitutional Law at Santa Clara University School of Law, said.

In the months following the Executive Order, this is exactly what happened. TikTok users asserted in multiple suits that this ban infringes on their First Amendment rights, and for some TikTok stars, their ability to make a living.

The Electronic Frontier Foundation (EFF) is a tech advocacy group that filed an amicus curiae brief for the lawsuit brought by the U.S.-based TikTok technical program manager,Patrick S. Ryan, in the U.S. District Court for the Northern District of California.

“A ban on TikTok violates fundamental First Amendment principles by eliminating a specific type of speaking, the unique expression of a TikTok user communicating with others through that platform, without sufficient considerations for the users’ speech,” EFF said in its brief.

Eric Goldman, Professor of Internet Law at Santa Clara University School of Law, said he also believes that the Internet is unequivocally a form of speech. Therefore anything expressed through it is protected.

“Anything that enables users to talk to each other is a speech venue, and removal of that venue is the worst kind of censorship,”Goldman said.

TikTokers Douglas Marland, Cosette Rinab, and Alec Chambers brought suit against the Trump administration in October, alleging that the ban would hinder their ability to make a living. They each have more than a million followers and claimed in their brief that they stood to lose $10 million per video. As a result, Judge Wendy Beetlestone of the Eastern District of Pennsylvania signed an order in favor of the Plaintiffs, which enjoined the Trump administration from enforcing the ban come November 12.

“We are deeply moved by the outpouring of support by our creators,” TikTok’s interim chief Vanessa Pappas said in a statement released on Twitter. “We stand behind our community as they share their voices, and we are committed to providing a home for them to do so.”

Amid talks of its complicated deal to sell it’s US based holdings to potential buyers, Oracle and Walmart, TikTok submitted a request for a 14-day extension of the November 12 deadline. The Trump administration’s Committee on Foreign Investment granted the request, but the two sides have not had any communication since.

It remains to be seen what the Trump Administration will do next in its attempt to ban Chinese apps in the US, and the question of whether this ban is a First Amendment violation remains unanswered.

(Editor's Note: This article was originally published in the November 2020 [Volume 51, Issue 2] edition of The Advocate.)