Can the First Amendment Save TikTok?

On Wednesday, President Joe Biden signed a law that could effectively ban TikTok if the company does not divest from ByteDance, its Chinese owner, in the next 12 months. But the law, which sped through the House and Senate, could face a significant uphill battle in US courts for potentially violating the First Amendment rights of both the company and its users.

In a statement, a TikTok spokesperson said “this unconstitutional law is a TikTok ban, and we will challenge it in court. We believe the facts and the law are clearly on our side, and we will ultimately prevail.”

TikTok has argued that prior attempts to ban the app ran afoul of the First Amendment. Last year, the state of Montana passed a TikTok ban that was blocked by a federal judge before it could go into effect. US District Judge Donald Molloy wrote that TikTok “had established a likelihood of irreparable harm” if the ban was enacted, both to the First Amendment rights of its users and to the ability of creators to make money.

Some experts say that the federal government could run into some of these same traps.

“Assuming the combination that the divestiture does not go through and the app is actually banned, that means that Americans who wish to access it cannot do so,” Nadine Farid Johnson, policy director at the Knight Institute, tells WIRED. Banning the app outright would go too far, Johnson says, and “wouldn’t be a tailored response that addresses the government's stated concerns.”

“In all cases, I think that where this legislation is going to fail is that it’s burdening so much more speech than is necessary,” says Jenna Leventoff, senior policy counsel at the ACLU.

If TikTok or its creators were to sue the government for violating the First Amendment, experts believe they could make a solid argument. John Morris, a principal at the Internet Society, says that the case in Montana and a 2020 case brought by users of WeChat following a Trump administration executive order to ban the Chinese chat app provide a blueprint for how the courts may view TikTok’s legal challenge.

“In that case, what appeared to be very relevant to the court was the fact that the WeChat platform was a critical platform for