Technology

TikTok's Free Speech Argument Has Support Among Legal Scholars

Congress should have brushed up on their Con Law.

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TikTok and Facebook application on screen Apple iPhone XRThings are looking up for TikTok. After Congress and the President signed off on a requirement for ByteDance to divest itself of TikTok, the company promised to go to court alleging that the law violated the First Amendment. There have already been cracks in the government’s argument against TikTok (thanks, Mitt Romney), but the government would have a hard time against TikTok even if not for the loudmouth. From NPR:

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.”

This assessment is good news for the millions of TikTok users nationwide. Does this mean that TikTok is destined to beat their case? Few things are guaranteed with the YOLO court in power, but having the law on the side of the people is a great position to be in. The facts are on TikTok’s side too; their “Project Texas” should act as defense against Congress’s claim that the app poses a a danger to users:

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.

The tide could quickly change if the government proffers any proof that TikTok is actually a spy app the Chinese government has duped everyone to download, but the dancing app looks like it will stick around for a bit longer if the DOJ fails to scrounge up any actual evidence of snoopery.

Legal Experts Say A TikTok Ban Without Specific Evidence Violates The First Amendment [NPR]

Earlier: TikTok Plans To Fight Censorship, Mouthy Politicians Make It Very Easy For Them

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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