Forcing TikTok to shut down its American operations over unspecified national security concerns would represent a violation of the First Amendment, according to six legal scholars surveyed by NPR.
TikTok last week filed a legal challenge against the Biden administration over a law that would ban the video app unless it fully divests from its China-based parent company, ByteDance, within 12 months.
Lawmakers and the White House have justified the crackdown on TikTok by claiming the app's link to Beijing makes it a national security threat. But supporters of a ban have not offered direct evidence of the Chinese government ever attempting to obtain data from the company, nor any proof that authorities there have ever influenced content on the platform used by 170 million Americans.
NPR reached out to a host of legal scholars who specialize in constitutional law, and the half-dozen who responded all said the U.S. government forcing the closure of TikTok on vague national security grounds would most likely infringe on TikTokkers First Amendment rights.
Evelyn Douek, a professor at Stanford Law School who focuses on online speech, said First Amendment legal precedents make clear that the government cannot shut down speech based on a hypothetical or potential threat to national security.
"The First Amendment places the burden on the government to demonstrate that the harms are real and that their response will actually mitigate those harms," Douek said. "To date, the government has not met this bar in the public domain, at least with respect to TikTok."
A Justice Department spokesperson said the agency looks forward to defending the law in court.
"This legislation addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations," the Justice spokesperson said.
TikTok's 'Project Texas' could be a major issue
Legal experts said that in addition to proving that TikTok is a security risk, U.S. officials will have to prove in court that its ban was the least restrictive way of dealing with the threat.
Most experts agree that a ban on TikTok will be examined under what is known as "strict scrutiny," meaning speech can only be curtailed if there is a compelling government reason and the solution is as narrow as possible.
Banning an entire social media platform, many have pointed out, looks like the opposite of a narrow solution.
"I find this especially implausible in light of TikTok's own good faith effort — Project Texas — to address the government's stated fears," said Ryan Calo, a professor in the University of Washington's School of Law.
Calo is referring to a plan TikTok says it has spent $2 billion on that would, with the help of Austin-based tech company Oracle, create a firewall between U.S. user data and the app's Beijing-based parent company.
TikTok officials presented Project Texas to national security officials in Washington but the plan failed to assuage critics, as it did not include a complete severing of TikTok from ByteDance.
While TikTok did make sweeping promises that Project Texas would sequester Americans' data from the company's Chinese headquarters, reports have indicated that data still flows between TikTok's U.S. personnel and those in China. On top of that, ByteDance still controls TikTok's "secret-sauce" algorithm, and ByteDance staff in China routinely work with the software updates that determine what millions see on the app every day.
For five years TikTok has been in talks with the Committee on Foreign Investment in the U.S., a panel led by the Treasury Department that reviews foreign investment for national security concerns. In its lawsuit, lawyers for TikTok say its proposed plan included giving the U.S. a "shut-down option" it could use if TikTok did not meet its data security standards.
The government will have to show how exactly Project Texas was an inadequate solution, said the University of Washington's Calo.
Douglas Laycock, a constitutional law expert at the University of Virginia, said the government will likely try to make the case that this is a "content neutral" regulation of a business owned by a foreign adversary that poses a national security threat to the U.S., not a case about censoring speech.
While the government will try to make the legal case about security issues rather than free speech, it will be difficult to avoid the constitutional implications, experts said.
"The First Amendment protects our ability to speak, to associate freely, and to receive information, both from others here in the United States and from people overseas," said Patrick Toomey with the ACLU's National Security Project.
"TikTok is host to an enormous global community that the app's creators and users in the United States could not readily reach and engage with elsewhere online."
Is divesting from ByteDance actually workable?
In its suit, TikTok said divesting from ByteDance is "not commercially, not technologically, not legally" possible.
One thing that would bolster the government case, Laycock said, is "a showing that the sale of TikTok, with its algorithm, is entirely workable," he said, "and that any obstacles to a sale are just ByteDance deliberately refusing to comply and sabotaging the law."
It's not just the company's resistance, though. Regulations in China would complicate, or even completely obstruct, a TikTok sale.
Any purchase of TikTok's U.S. offices would require the approval of the Chinese government, which opposes a forced sale. ByteDance has said it is not interested in potential TikTok bidders.
And then there are questions about what would even be purchased, since export-control laws in China would prevent TikTok's algorithm from being sold, meaning someone would be buying one of the world's most popular apps without the technology that propelled its popularity.
Classified briefing looms large
When former President Donald Trump tried to shut down TikTok through an executive order, federal judges blocked it over, in part, a lack of evidence that the app posed a security risk to to the nation. In Montana, a federal judge prevented a statewide ban from taking effect after declaring that the effort included a "pervasive undertone of anti-Chinese sentiment."
Before Congress added the ban to a foreign aid bill, lawmakers received a classified briefing about TikTok. Exactly what lawmakers heard has not been revealed publicly, but it was enough to coalesce overwhelming bipartisan support for forcing TikTok to divest from ByteDance or face a nationwide shutdown.
"My reaction to this briefing is that TikTok is a gun aimed at Americans' heads," Sen. Richard Blumenthal, D-Conn., told reporters after the session, adding, "The Chinese Communists are weaponizing information that they are constantly, surreptitiously collecting from 170 million Americans and potentially aiming that information, using it through algorithms, at the core of American democracy."
Laws in China would compel ByteDance to turn over any requests for Americans' data, but TikTok said it has never been asked for any information from the Chinese Community Party. While ByteDance staff have had access to U.S. user data, there is no public evidence of Chinese government officials attempting to obtain data on U.S. citizens.
Legal experts agree the case could turn on what proof the Department of Justice brings to court, since the public campaign against TikTok has not cited any specific instances of the Chinese government trying to use the app as a cyberweapon.
When asked what is the most important unknown in the case, Jameel Jaffer, who leads the Knight First Amendment Institute at Columbia University, said: "The government's purported secret evidence."
Other experts agreed.
"[It will depend on] whether the government can present some sort of exceptional evidence to justify this exceptional measure adopted through an exceptional procedure," Douek of Stanford said. "First Amendment law should not countenance shutting down an entire vibrant speech platform for anything less."
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