U.S. lawmakers want to force a sale of TikTok by its Chinese owner or ban it from app stores, which legal experts said would set up a showdown with the social media company over the U.S. Constitution's First Amendment free speech protections.
While the bill itself does not say anything about speech, the proposal has alarmed civil rights advocates, TikTok and users of the app, all of whom could sue to block the proposal if it becomes law.
Legal experts said opponents of the law could argue it infringes free speech by preventing users from expressing themselves and businesses from using the app to promote their products. TikTok has already beaten back a similar attempt to ban its use in the U.S. state of Montana, although the state is appealing that ruling.
Jameel Jaffer, executive director of the Knight First Amendment Institute called the measure "censorship — plain and simple" in a letter that his group and others sent this week to lawmakers.
A court that agrees with that assessment would apply strict scrutiny, meaning the government would have to prove it has not violated speech rights. This hurdle would make it more likely for the law to be blocked.
The bill's promoters have argued it has nothing to do with speech but merely regulates a commercial activity by requiring TikTok's Beijing-based owner ByteDance to sell the U.S. operations, denying China easy access to users' data.
The bill had strong bipartisan support in the U.S. House but still must clear the U.S. Senate, which could rework the proposal. U.S. President Joe Biden, whose re-election campaign uses TikTok, has said he supports the proposal.
If the bill becomes law, and users and TikTok sue to block enforcement, a key part of any legal challenge will be the court's view of the standard applied in reviewing the law.