TikTok & the First Amendment Rights of Foreign Nationals

In a significant move with far-reaching implications for free speech and the tech industry, the United States House of Representatives recently passed a bill targeting TikTok, the widely popular short-form video platform owned by the Chinese company ByteDance. Passed with overwhelming bipartisan support by a vote of 352 to 65, the bill mandates that ByteDance must divest its U.S. assets related to TikTok within approximately six months. Failure to comply would mean that TikTok faces an outright ban in the U.S. This legislative action underscores the growing concerns among U.S. lawmakers about the potential risks to national security and data privacy posed by the app’s ties to China, as well as the broader geopolitical tensions between Washington and Beijing. The passage of this bill marks a pivotal moment in the ongoing debate over the balance between national security interests and the principles of free speech and innovation in the digital age.

Navigating the delicate equilibrium between civil liberties and national security has long been a complex challenge for U.S. lawmakers, and that challenge has only intensified in the digital era. The controversy surrounding TikTok and ByteDance exemplifies one of the most central problems in U.S. policy making, as legislators grapple with the implications of foreign-owned tech platforms that operate on American devices. The heart of the issue lies in the potential for these platforms to be exploited for espionage, misinformation campaigns, or other activities detrimental to national security. However, in addressing these risks, some commentators (such as Will Reinhart of the American Enterprise Institute) have pointed out that a TikTok ban may contradict the fundamental American values of free speech and the open exchange of ideas. The passage of legislation targeting TikTok highlights the difficult decisions faced by policymakers, who must balance the need to protect the nation against external threats with the imperative to uphold the constitutional rights that define the fabric of American democracy. This ongoing debate raises critical questions about where the line should be drawn in the pursuit of security without compromising the freedoms that are essential to the American way of life.

Should ByteDance simply cut its losses and sell TikTok? Maybe not. Even if the 6 month deadline to divest were to elapse before ByteDance sells the company, the Chinese firm may still have a chance to retain control of TikTok through the U.S. court system.

One core element of any potential lawsuit against the U.S. government hinges on the concept of standing, particularly whether foreign entities or nationals are beneficiaries of First Amendment protections. Standing requires that a party demonstrate a sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In the context of the First Amendment, which safeguards freedoms of speech and expression, the U.S. courts have historically recognized that these protections extend beyond American citizens to include foreign entities operating within the United States. This precedent suggests that ByteDance, despite being a Chinese company, may argue that its rights, or those of TikTok as an operating entity in the U.S., are infringed upon by the bill.

The U.S. legal system delineates certain differences in the rights of citizens versus noncitizens, though the Constitution extends many fundamental rights to everyone “within its jurisdiction.” This inclusivity means that noncitizens, including foreign businesses operating in the U.S., enjoy a number of constitutional protections. However, the extent of these rights, particularly regarding business operations, can vary based on case law and the context of their application.

A landmark case relevant to the discussion of business ownership and the rights of noncitizens is International Shoe Co. v. Washington, 326 U.S. 310 (1945), which established the “minimum contacts” standard for determining jurisdiction. This case, while primarily addressing jurisdiction, implicitly acknowledges that foreign entities operating within the U.S. are afforded certain legal protections, including due process rights under the Fourteenth Amendment. 

Further exploration into the rights of noncitizens, especially in the context of business and free speech, can be seen in cases like Citizens United v. Federal Election Commission (2010). Although Citizens United focused on corporate political speech, it underscored the principle that corporations, as associations of individuals (including noncitizens), have First Amendment rights. This decision suggests a broad interpretation of free speech rights that can extend to foreign-owned businesses like ByteDance, emphasizing that these entities can exercise certain constitutional rights when they operate within U.S. borders.

Building on this foundation, ByteDance could assert that the forced divestiture or outright ban of TikTok not only harms its business interests but also constitutes a violation of First Amendment rights by potentially suppressing a platform for free expression enjoyed by millions of American users. This argument may delve into the nuances of whether the government’s national security concerns justify such sweeping measures against TikTok, challenging the balance between safeguarding national security and upholding free speech rights. The crux of ByteDance’s argument could rest on demonstrating that the legislative action is a disproportionate response to the alleged risks, thereby infringing on the First Amendment protections applicable to ByteDance and its U.S. operations. This legal battle would likely explore complex intersections of constitutional law, national security imperatives, and the global nature of digital platforms, setting a potentially groundbreaking precedent for the reach of U.S. constitutional protections in the digital age.

However, it’s important to note that while noncitizens do have rights, those rights are not absolute and can be limited under certain circumstances, especially when national security is invoked. The challenge for ByteDance in any legal battle would be to argue that a TikTok ban would upset the balance between these rights and the government’s authority to act in the interest of national security.

While a First Amendment defense may seem like the silver bullet that will preserve millions of Americans’ access to TikTok, the path to a ByteDance victory in court has several hurdles that would need to be cleared before relief could be delivered on these grounds. One such hurdle is that the potential data privacy concerns raised by lawmakers may constitute a compelling state interest to restrict ByteDance’s First Amendment rights.

The concept of a compelling state interest plays a crucial role in U.S. constitutional law, especially in cases where the government seeks to restrict certain rights guaranteed by the Constitution, including the First Amendment. A compelling state interest is a principle that allows the government to regulate or restrict constitutional rights, under the condition that the regulation is necessary to achieve a critically important objective that cannot be accomplished by less restrictive means. This principle is part of the strict scrutiny test, the highest standard of judicial review used by courts to evaluate laws that infringe on constitutional rights.

One potentially relevant case is Holder v. Humanitarian Law Project (2010). In this case, the Supreme Court upheld restrictions on providing “material support” to foreign terrorist organizations, arguing that the government had a compelling interest in national security that justified limiting speech-related activities with those organizations. The ruling demonstrated the Court’s willingness to curtail First Amendment rights based on the government’s compelling interest in preventing terrorism.

The Holder case specifically examined the constitutionality of a federal law prohibiting “material support” to foreign terrorist organizations, as designated by the Secretary of State. Material support was broadly defined to include any tangible or intangible assistance, including training, expert advice or assistance, service, and personnel.

The Humanitarian Law Project (HLP), along with other plaintiffs, challenged this law, arguing that their intended activities—such as teaching these organizations about nonviolent conflict resolution and petitioning international bodies like the United Nations—were protected by the First Amendment’s guarantee of free speech. They argued that the law was overly broad and vague, potentially criminalizing speech and activities that were meant to promote peace and human rights.

The Supreme Court, in a 6-3 decision, upheld the provision against the HLP’s challenge. Writing for the majority, Chief Justice John Roberts argued that the government had a compelling interest in combating terrorism, which justified the prohibition on providing material support to terrorist organizations. The Court found that such support could free up other resources within the organization that could then be directed towards terrorist activities, even if the support itself was intended for peaceful purposes. Moreover, the Court held that the law was not overly broad or vague, noting that it clearly defined the types of support prohibited and provided sufficient guidance to avoid arbitrary enforcement.

Against ByteDance’s hypothetical First Amendment defense, the government might argue that national security concerns related to the Chinese ownership of TikTok constitute a compelling state interest that justifies restrictions on ByteDance’s operations in the U.S., including the proposed TikTok ban. The argument would hinge on a clear demonstration that the risks associated with ByteDance’s control over TikTok—such as potential data privacy breaches or espionage—represent significant threats to U.S. national security. The government would need to show that these concerns are substantial and that the proposed measures (e.g., forcing a sale or banning TikTok) are narrowly tailored to address these threats effectively, without imposing unnecessary restrictions on free speech.

However, the unique nature of the ByteDance situation, and the complex national security implications of digital platforms, means that direct precedents are limited. Cases like Holder v. Humanitarian Law Project are not a perfect analogue for this situation, because the national security implications of protected speech activity in support of foreign terrorist organizations are arguably clearer than those alleged against ByteDance and TikTok.

While the future status of TikTok’s business in the U.S. is certainly in question, there are still plenty of off ramps that could bring any potential forced sale or platform ban into effect well before the courts would have to weigh any free speech questions related to the bill. The Senate still has to pass the bill, the president must sign it into law, and ByteDance may still surprise all the speculators and sell the business at a steep forced-sale-discount. Regardless of whether or not these questions wind up getting answered in court, the TikTok legislation is emblematic of the current balance that legislators are attempting to strike between national security and free speech. 

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