[Global Focus] First Amendment or National Security... TikTok vs. United States

The future of TikTok is more uncertain than ever. Last week, TikTok filed a lawsuit against the Joe Biden administration in the United States, claiming that the 'TikTok Ban Act' violates the Constitution, marking the official start of a legal battle between the tech company and the government. Now, TikTok's fate depends on which side the U.S. courts will favor. Is it a matter of the First Amendment, or a national security issue? The outcome is expected to have widespread repercussions not only on overall U.S.-China relations but also on IT regulations in major countries.

[Image source=Reuters Yonhap News]

Foreseen Legal Battle... "Will Reach the Supreme Court"

TikTok, whose parent company is China's ByteDance, filed the lawsuit against the U.S. government on the 7th (local time). This was the day after TikTok CEO Zhu Shouzi appeared as an honorary chair on the Met Gala red carpet at the New York Metropolitan Museum, drawing significant attention. Headlines from major foreign media quickly shifted to "TikTok sues the U.S." within a day of reports such as "First public appearance after the TikTok Ban Act passed (Business Insider)" and "Met Gala is sponsored by TikTok, which is facing expulsion in the U.S. (Forbes)."

This lawsuit was anticipated early on. When President Biden signed a bill last month banning TikTok use in the U.S. if ByteDance did not sell TikTok, CEO Zhu Shouzi immediately responded, "Facts and the Constitution are on our side."

TikTok argues that the TikTok Ban Act "violates the freedom of expression guaranteed by the First Amendment." The 67-page complaint submitted to the U.S. Court of Appeals for the District of Columbia Circuit states, "For the first time in history, Congress has enacted a law permanently and nationwide banning a platform. It has blocked Americans from a platform with one billion users worldwide," "National security concerns are not sufficient grounds to restrict freedom of expression," and "This is an extreme measure and an illegal seizure of private property."

The case is expected to be handled by the U.S. Court of Appeals in Washington D.C. During the court proceedings, the TikTok ban-related procedures in the U.S. will be put on hold. Moreover, even if the appellate court issues a ruling, the legal battle is unlikely to end easily. The New York Times (NYT) predicted, "The case will go all the way to the Supreme Court."

[Image source=UPI Yonhap News]

What is the First Amendment?

The key issue is whether TikTok's claim of First Amendment violation holds. Previously, it was the First Amendment that blocked former President Donald Trump's attempt in 2020 to ban TikTok use in the U.S. Adopted in 1791 and cited in numerous rulings since, the First Amendment broadly guarantees freedom of religion, speech, press, assembly, and petitioning the government. It is the core principle defining today's American society that holds freedom of expression sacred. Most democratic countries today have also been influenced by the U.S. First Amendment.

TikTok claims that the TikTok Ban Act signed by President Biden "tramples on the freedom of expression of 170 million Americans." The American Civil Liberties Union (ACLU) also cited the First Amendment, which prohibits any law that infringes on freedom of expression, to argue that "the TikTok Ban Act is unconstitutional."

On the other hand, Representative Raja Krishnamoorthi, who introduced the TikTok ban bill, dismissed this by saying, "The First Amendment does not grant the right to espionage." The U.S. government and Congress currently express concerns that, citing China's National Security Law and others, the Chinese government could use TikTok to surveil American users, collect information, and influence the public. Especially with the November presidential election approaching, there is heightened vigilance against possible Chinese interference similar to Russia's involvement in the 2016 election. To alleviate these security concerns, the position is that TikTok must sever ties with ByteDance.

Some point out that platforms like X (formerly Twitter), Instagram, Facebook, and Google are blocked in China, supporting the TikTok Ban Act. Nicholas Burns, the U.S. Ambassador to China, criticized China's backlash after the TikTok Ban Act passed, calling it "very ironic" by highlighting this point.

Divided Opinions in the U.S... Forced Sale Unlikely

Locally, even if the court sides with the government demanding a 'forced sale,' many analyses suggest that TikTok's sale will not be easy. This is due to the lack of suitable companies ready to acquire the business rights and because ByteDance is unlikely to sell easily.

The New York Times (NYT) previously estimated TikTok's U.S. business rights to be worth over $50 billion. It is suggested that investors might form an investment group rather than a single entity acquiring TikTok. Notable figures interested in acquiring TikTok include former Treasury Secretary Steve Mnuchin from the Trump administration.

American public opinion on the forced sale of TikTok is also divided. According to a poll conducted at the end of last month by ABC News and Ipsos, 51% of respondents supported the government's push for a forced sale of TikTok, while 46% opposed it. Regarding banning TikTok's service in the U.S. if the sale does not proceed, 53% supported the ban, and 44% opposed it. ABC News reported, "Opinions were clearly divided along generational lines, with 39% of adults under 30 supporting the ban, while among older adults, 7 out of 10 favored the ban."

Why Are Major Countries Paying Attention?

The eyes of major countries worldwide are also focused on the legal dispute between the U.S. government and TikTok. This is because it could be a flashpoint worsening tensions between the two major powers (G2) engaged in a hegemonic competition, and it could influence regulations targeting global IT companies in various countries. Major foreign media have diagnosed the TikTok dispute as "not merely a corporate issue but an extension of hegemonic competition considering technological and political repercussions." They also predict that this hegemonic competition will affect future regulations targeting multinational IT companies.

Moreover, among the U.S.'s allies, many countries have already banned TikTok on government and official devices citing national security reasons, similar to the U.S. Attention is on whether these countries will follow the U.S. in imposing comprehensive TikTok bans.

Countries such as Australia and the United Kingdom, members of the Five Eyes alliance alongside the U.S., have already banned TikTok on government devices. The European Union (EU) also enacted related legislation in March and strongly recommends deleting the TikTok app not only from government-owned devices but also from personal devices. The Netherlands, while not explicitly naming TikTok, announced that it discourages the use of all apps from countries with aggressive cyber programs targeting Dutch national interests on government-distributed devices. These countries include China, Russia, North Korea, and Iran.

India, which has border disputes with China, has banned dozens of Chinese apps including TikTok and WeChat since 2020, citing privacy and security concerns. This measure was implemented following military clashes in the Himalayan border region.