ByteDance Fights Back: Lawsuit Challenges Unprecedented TikTok Ban as Free Speech Infringement

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In an audacious legal challenge, TikTok and its parent company ByteDance filed a lawsuit Tuesday, contending the recent American law that could potentially ban the popular video sharing app in the US unless it’s sold to an approved buyer. The lawsuit, as ByteDance sees it, is an unprecedented encroachment on free speech and unfairly targets TikTok.

ByteDance contends the new law ambiguously portrays its ownership of Tiktok as an unwarranted national security threat to bypass the First Amendment. The company staunchly asserts that there is null evidence that they pose a threat to the nation, branding the law as so ostentatiously unconstitutional that its sponsors are framing it as a mechanism to regulate the company’s ownership.

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Indeed, ByteDance insists that, “For the first time in history, Congress has enacted a law subjecting a single, named speech platform to a permanent, nationwide ban, thereby barring every American from engaging in a unique online community of over 1 billion users worldwide.”

This groundbreaking law, penned by President Joe Biden and passed in a greater foreign aid package, has the dubious honor of being the first time the US has targeted a social media company for potential prohibition. Critics argue that such a move is akin to tactics employed by oppressive regimes like Iran and China.

This lawsuit represents the latest twist in a convoluted legal saga over TikTok’s fate in the U.S. – a battle that could potentially find itself before the Supreme Court. If TikTok’s legal challenge fails, the company predicts a forced shutdown next year.

The law mandates ByteDance to offload the platform to a U.S.-approved buyer within nine months. The company could earn an additional three months if a sale is already underway. ByteDance, however, has stated it has no intentions of selling TikTok. Even if ByteDance was considering divestiture, approval from Beijing would still be required. They claim the Chinese government has signaled that it would veto any attempts by ByteDance to relinquish the algorithm that populates users’ feed, dubbed as the linchpin of TikTok’s success in the States.

ByteDance and TikTok believe they have been left with no alternative but to shut down by January 19 next year, as enduring operation under the new law would be commercially, technologically, or legally unfeasible. They argue that divesting the U.S. TikTok platform as a separate entity would be impossible and a U.S.-exclusive TikTok would essentially operate as an isolated enclave, detached from its international userbase.

As the lawsuit elaborates, divestment is also a technological impossibility, since it would necessitate wresting millions of lines of code from ByteDance to eliminate any “operational relationship” with the new U.S. app.

Both ByteDance and TikTok maintain they should be defended by First Amendment’s promise of free expression and are soliciting a declaratory judgment citing the law as unconstitutional.

ByteDance is expected to first petition a court to provisionally block the federal law from being enacted, a decision that could determine the case since, without an injunction, ByteDance would need to sell Tiktok before the broader issue could be adjudicated.

Meanwhile, opinions swing between individuals like Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School, who believes courts will primarily defer to Congress, and Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, who expects TikTok’s lawsuit to be successful.

As Jaffer articulates, “The First Amendment implies the government can’t restrict Americans’ access to ideas, information or media from abroad without a very good reason — and no such reason exists here.”

The outcome, however, remains uncertain. “The bipartisan nature of this federal law may make judges more likely to defer to a Congressional determination that the company poses a national security risk,” observes Gautam Hans, a law professor and associate director of the First Amendment Clinic at Cornell University, yet without further public discourse on the risks, the predicament remains as to why the courts should validate such an exceptional law.