Technology

TikTok Has A High Hurdle To Jump In Court

The Constitution should reign supreme, but Congress has a lot of sway.

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TikTok and Facebook application on screen Apple iPhone XRRecently, Congress voted to functionally ban TikTok. They can hide behind the claim that they are merely requiring ByteDance to divest its hold on TikTok within 9 months and blame ByteDance for forcing their hand, but no multi-billion dollar company is going to do that if it means leaking their prized algorithm to competitors. It would be worth going to court over, and ByteDance has promised to go that route if push came to shove. That battle looks to be an uphill one. From The Verge:

TikTok has promised to bring a legal challenge against the law that was signed by President Joe Biden on Wednesday…Experts expect its main arguments to center on alleged violations of its own First Amendment rights and those of its 170 million US users. But it won’t be an easy fight since judges often hesitate to make decisions of national security importance where the legislature has so forcefully weighed in.

If only this case involved some sort of nexus test that properly balanced free speech rights with matters of national security. Maybe then the Supreme Court would step in, say “Screw Congressional intent!” and side with big business. I’m sorry, I’m still hung up on the Sackett decision.

The TikTok case has to hit the lower courts before Thomas and Alito see it though, so the point about Congressional deference still stands. Anyone who has sat through a war powers module in a Con Law class could tell you that when Congress does a thing for the sake of “national security,” pretty much anything is fair game. Like, anything. Considering that TikTok has openly been demonized as a tool China uses to funnel propaganda toward impressionable Americans:

It really isn’t that much of a stretch to frame the justification for the ban in war terms, namely stopping a foreign nation’s psychological combat campaign. Is that a bunk position? Probably, but judges also have a habit of taking national security at its word when legal arguments are made.

The Legal Challenges That Lie Ahead For TikTok — In Both The US And China [The Verge]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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