The new suit from TikTok alleges that the US law compromises the company’s right to protected speech. It also claims the law infringes on the speech rights of its users.
However, the social media giant could find that it is on less-than-solid legal ground, some experts said. The main reason is its ownership by a Chinese company, ByteDance.
Jamil Jaffer, director of the Antonin Scalia Law School at George Mason University’s National Security Institute said that “As a general matter, foreign companies don’t have constitutional rights”.
Still, an attorney for Pacific Legal Foundation, Wilson Freeman said his initial reaction to TikTok’s complaint was that it’s a challenge the government must take “very seriously.”
He further added that “I’m not surprised they led with the First Amendment claim, as it seems like the strongest of the four claims by far”. Moreover, “You can never predict litigation, but I would not be at all surprised for TikTok to win on that claim.”
One potential problem with TikTok’s First Amendment strategy is that a court could shoot down the idea that content on the platform qualifies as Tik Tok 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.
In its complaint, TikTok confirmed a report from the Wall Street Journal that said a sale or divestiture would require the Chinese government’s approval.
It went on to say that the Chinese government “has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the US.”
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