• by Wendy Davis  @wendyndavis, April 24, 2024

President Joe Biden on Wednesday signed a foreign aid package that includes a ban on the popular TikTok app.

The measure, which was passed by the Senate late Tuesday and the House on Saturday, gives TikTok's parent company, the China-based ByteDance, one year to sell the app. If ByteDance fails to do so, web hosting services and app stores will be prohibited from distributing TikTok.

TikTok has vowed to challenge the law on the grounds that it violates the First Amendment.

“We will keep fighting for your rights in the courts,” TikTok CEO Shou Chew said in a video posted to X, formerly Twitter.

“We expect to prevail again,” he added.

Last year, TikTok successfully sought to block a Montana law that would have banned TikTok in that state. TikTok also successfully challenged an executive order issued by former President Donald Trump that would have resulted in a ban.

Lawmakers who passed the law cited national security, with some saying information received through classified briefings justified the ban. The lawmakers in favor of the ban cited fears that the Chinese government would be able to obtain data from the app about Americans, and that Chinese Communist Party would use the app to spread propaganda.

Some of the senators who spoke Tuesday in favor of the law referenced ByteDance's history of using data collected through the app to surveil journalists. In December 2022, it emerged that ByteDance examined IP addresses and other app data from journalists from BuzzFeed and one from The Financial Times as part of an investigation into leaks by ByteDance personnel. ByteDance specifically was trying to figure out whether the journalists where in the same general vicinity as personnel who could have leaked information.

Digital rights advocates oppose the law, arguing that banning a communications platform is unconstitutional.

“Users of TikTok in the United States have a First Amendment right to receive information,” including videos, art and news items posted by other TikTok users, Kate Ruane, director of the Center for Democracy & Technology's Free Expression Project, tells MediaPost.

That right “cannot be restricted on the basis of speculative risks,” she adds.

“There has to be real, concrete, imminent damage in order to justify this degree of a restriction in speech,” Ruane says.

She adds that the government can only censor information in extremely limited circumstances -- such as if a publication plans to reveal the location of military troops.

George Wang, a staff attorney at the Knight First Amendment Institute at Columbia, adds that the government can't constitutionally suppress speech merely because it's viewed as foreign propaganda.

“The Supreme Court has long acknowledged that the First Amendment protects Americans' right to access media -- including media from abroad,” Wang tells MediaPost.

He adds that the Supreme Court has been clear that Americans “have the right to access information the government deems dangerous.”

For instance, in 1965 the court invalidated a law that restricted postal delivery of “foreign communist propaganda.”