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Is the House’s TikTok ban legal? Expert says it raises ‘constitutional concerns’

The bill that could potentially ban the app is moving toward the Senate, but a Northeastern legal expert says it could get mired in the courts based on First Amendment concerns.

A woman holding a sign that says #KeepTikTok in front of of the Capitol in Washington D.C.
TikTok influencers and users have already raised concerns about the House bill, which targets the popular social media app. Photo by Aaron Schwartz/NurPhoto via AP

The bill that could potentially ban TikTok in the U.S. recently swept through the House on its way to the Senate, but the legislation raises “constitutional concerns” that could see it get challenged in court, says Elettra Bietti, assistant professor of law and computer science at Northeastern University.

The bill as it stands now would force TikTok parent company ByteDance to sell the social media app to a U.S.-approved buyer or else it would be illegal to distribute the app on U.S. app stores. The legislation, which received bipartisan support in the House and President Joe Biden’s advance approval, aims to address national security and privacy concerns that lawmakers claim TikTok and its Chinese parent company present. TikTok has publicly rebutted claims about its connection to and data sharing with the Chinese government.

But is the concept of a TikTok ban, as proposed by this bill, even legal? That’s less clear than its path forward in Congress. Bietti says the bill “would probably be brought to court and challenged on constitutional grounds, primarily on First Amendment grounds.” 

Headshot of Elettra Bietti.
Elettra Bietti, assistant professor of law and computer Science at Northeastern University. Photo by Alyssa Stone/Northeastern University

“There is the question of the interest of users and of business users of TikTok in speech on the platform and speaking in the platform,” Bietti says. “They could probably bring a lawsuit against this government bill based on the fact that their speech interests are undermined.”

TikTok itself could also potentially bring a lawsuit against the federal government, Bietti says, arguing that its corporate speech rights are being interfered with.

“The U.S. since Citizens United at least has recognized that corporations have free speech rights,” Bietti says. “Obviously, these rights are slightly different than the rights of individuals, but there are still things that the First Amendment protects.”

The House bill comes at a time when the question of how the First Amendment relates to social media platforms could be determined by the Supreme Court. A pair of cases regarding Republican-backed legislation in Florida and Texas that would limit the ability of social media companies to moderate content could dramatically change how people and companies operate online.

Texas and Florida say that social media companies like Facebook and X (formerly known as Twitter) should not be able to remove posts or ban people from platforms based on their political views. Meanwhile, the companies have argued that laws like this violate their First Amendment rights and unlawfully limit their ability to make editorial decisions. Bietti says the companies are essentially arguing that they should be treated like content publishers and curators, similar to news publications.  

“If they’re publishers, not only can they not be regulated in significant ways but they also need to be allowed to curate their content,” Bietti says. “If the Supreme Court … starts adopting those types of standards that very clearly understand platforms as curators of content, it becomes pretty obvious that a platform like TikTok is actually curating content and is a channel and vehicle of speech. It would open up a number of possibilities for people who want to contest the bill.”

Bietti says all of these First Amendment issues pose clear legal challenges to the bill, which she argues is far too targeted to address the privacy and national security concerns expressed by legislators.

“There’s no reason why TikTok would be more dangerous, at least in my view, than these other platforms,” Bietti says. “Facebook, Google, Amazon, all of them are very similar. There is not a significant distinction between these apps.”

Instead, Bietti says U.S. legislators should be looking toward the European Union and its General Data Protection Regulation as an example. Since it went into effect in 2018, there have been conversations about whether the U.S. should adopt something similar, but the idea of a federal privacy bill has failed to secure bipartisan support in the way that a targeted TikTok ban has. 

“We could think about a federal privacy law and we could think about harmonizing the various state approaches that are popping up … and at least get a baseline for businesses that have to operate across the United States to give some guarantees to consumers that their data and private and often very sensitive information is not being used in unlawful or unacceptable ways,” Bietti says.