TikTok has urged the US Court of Appeals for the District of Columbia to strike down a law that could potentially ban the short video app if ByteDance does not divest its stake. In its brief, TikTok argues that the law violates the First Amendment, which protects the right to free speech.

At the center of the lawsuit is the Protecting Americans From Foreign Adversary Controlled Applications Act that President Joe Biden signed into law in April (even though he’s active on TikTok). The Act calls for a ban on TikTok unless Bytedance sells its stake. The question is: will the bill withstand TikTok’s efforts to strike it down in the courts? Let’s see what the experts are saying.

TikTok Banks On US First Amendment to Fight the Proposed Ban

In its court brief, TikTok said, “The Act is unprecedented. Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act.”

It adds that the court should examine the “extraordinary speech restriction with the utmost care and most exacting scrutiny” under the First Amendment.

Notably, the First Amendment, protects freedom of speech, the press, and assembly. TikTok invoked the First Amendment to highlight that any actions to ban it in the US would be against the law and legal experts agree that their argument is a strong one.

In its brief, TikTok also talked about an agreement that it was working on with the US government. Under that agreement, the data of US citizens would be stored by Oracle which is a US-based company. Also, the data would be overseen by a new entity named TikTok US Data Security, which would be supervised by a special board that would include members approved by the US government.

According to TikTok, that agreement was never signed, and the US government “ceased substantive engagement regarding the Agreement in September 2022.”

TikTok Reiterates It’s Not a National Security Risk

In its brief, TikTok reiterated that it is not a national security risk. It said that the US government’s report “offered no evidence of TikTok disclosing user data to Chinese authorities, just a general claim that China “can require” companies to surrender their data.”

To be sure, there are genuine concerns over TikTok being a security threat as, according to Chinese law, ByteDance could be forced to assist in national intelligence efforts, likely including sending US user data to the government. While ByteDance has denied it would ever do so, the assertion has failed to cut ice with many governments globally.

If the bill withstands TikTok’s challenges, the US wouldn’t even be the first country to ban the app. India banned TikTok in 2020 after a border clash with China while countries like the UK, Canada, and Australia have barred government employees from using TikTok.

Concerns over TikTok sharing data with China gained further impetus after multiple former TikTok employees came forward with allegations that the social media service’s operations were closely intertwined with their Chinese parent company, ByteDance, during their tenures, casting serious doubt on the company’s assertions of autonomy.

However, TikTok alleges that it is being signed out and said, “any claim of national security is legally irrelevant here because it cannot justify the Act’s unconstitutional singling out of TikTok.”

ByteDance Is Not Willing to Divest Its Stake

Technically, ByteDance could just sell TikTok to an American company and it would no longer face a ban. However, the court brief, filed by TikTok and a group of eight creators, says, that a divestiture is not possible – technologically, commercially, as well as legally. Specifically, it said that a transaction is just not possible in the 270 days that the Act proposes.

The brief added, “Petitioners have repeatedly explained why this type of divestiture would not work, and Congress apparently never even considered whether it was possible.”

Notably, China has signaled that it is against a forced sale of TikTok. TikTok is easily worth 10s of billions of dollars because of its fanatical user base of over 170 million Americans. However, the TikTok content recommendation algorithm, credited with much of the platform’s success, might be so valuable that ByteDance (and the Chinese government, if it steps in) may simply let the platform get banned instead of selling it to US competitors.

Would ByteDance Receive a Reprieve from the Courts?

While we don’t yet know which side the courts would side with, in 2020, courts blocked then-President Donald Trump from banning WeChat, a unit of Tencent in the United States.

Notably, Trump issued an executive order in August 2020 that gave TikTok 90 days to either sell its US assets to a US-based company or shut its operations in the country. However, he has since joined the platform, even after he started his own social media platform, Truth Social. Also, the former President has toned down his rhetoric against the ByteDance-owned company and sees platforms like Facebook – which banned him following the Capitol Hill riots – as equally problematic.

The former President no longer favors the TikTok ban, citing that it would only make Facebook stronger. Trump likely has a personal grudge against Facebook as it worked with government officials to restrict discussion about the infamous Hunter Biden laptop story, which Trump argues amounted to election interference.

Steven Weber, a professor at the University of California at Berkeley, said the disinformation and propaganda concerns that the US government has raised were “industry-wide issues that are not unique to TikTok.”

According to Weber, “There is no evident national security rationale for the Act’s particular focus on TikTok.” He added, “It is arbitrary to select one market participant for policy issues that an entire industry faces.”

Many critics of the law to ban TikTok claim that the real motivation was to eliminate TikTok’s free exchange of information to stop Americans from learning from non-establishment sources. For example, Senator Mitt Romney seemed to indicate that Congress’ overwhelming support for the bill was due to the desire to crush dissent against Israel’s brutal actions in Gaza.

Furthermore, according to six legal scholars surveyed by NPR a ban on TikTok based on “unspecified national security concerns” will be a violation of the First Amendment.

According to the NPR report, “Legal experts said that in addition to proving that TikTok is a security risk, U.S. officials will have to prove in court that its ban was the least restrictive way of dealing with the threat.”

Overall, it seems the US government has to convince courts that TikTok is indeed a national security threat and would need to back up these claims with hard evidence. In the absence of credible proof that TikTok is a national security threat, a ban might be difficult to impose in a democracy like the US.