Is there a Constitutional Guarantee for TikTok Access?

The TikTok Ban is a Done Deal, But Will it Stand up in Court?

President Biden has officially signed the TikTok ban into law, leading Bytedance to potentially part ways with the popular app or face a national ban in American app stores. TikTok has vowed to challenge this law, potentially escalating the case to the Supreme Court, stating that it "tramples" First Amendment protections.

"Banning TikTok in the United States? That's a load of bullshit," said First Amendment attorney Marc Randazza in an interview with Gizmodo. "I don't let TikTok in my house, but I can't wrap my head around why it should be banned here."

Legal experts agree that the forced sale or ban of TikTok impacts the speech of three significant players: TikTok itself, its users, and the App Stores. Limiting any of this speech would require significant offenses on behalf of TikTok. However, Congress has yet to provide new evidence, only citing "classified briefings" for this law.

U.S. Senator Mark Warner called TikTok a "propaganda tool" of the Chinese Communist Party in a CBS interview. Countless other U.S. lawmakers echo this claim, alleging that TikTok spreads Chinese propaganda and pro-Hamas messaging, aiming to sow disinformation among American youth. However, propaganda is not illegal, undermining any justifications the government might offer.

Another argument against TikTok is its alleged data collection practices, which could potentially be a stronger case. U.S. Congressman Michael McCaul claimed TikTok is akin to a "spy balloon in Americans' phones," gathering the personal information of 170 million American users to share with the Chinese government. However, Congress only relies on "classified briefings" to bolster these claims.

"I'm more inclined to see this as a big bag of nothing because of the extent to which TikTok has been tried already," said Eric Goldman, Professor of Law at Santa Clara University. "In previous cases, the government has provided evidence to judges under seal, and those judges still ruled in favor of TikTok."

TikTok denies sharing user data with China and claims it has spent over $1.5 billion on Project Texas to secure American data within the United States. A potential court case may shed light on some of this information, but national security cases often steamroll the constitutional rights of Americans without substantial public information.

"If the rationale is national security, that argument has never been particularly effective for regulation," said Randazza. "The route here for regulators might be privacy, but the problem is that we've already surrendered most of our privacy rights to Silicon Valley."

American apps track and spy on user behavior because the U.S. has no comprehensive data privacy law. China may not even need TikTok to obtain American data, considering data brokers could theoretically provide a simpler alternative. One data broker, in fact, was recently revealed to be the U.S. government's own National Security Agency.

Legal experts align with TikTok's stance, contending that a government-mandated sale or ban of a social media app restricts the freedom of speech for multiple players. For the U.S. government to successfully argue against TikTok, it will need substantial evidence that the app is less than squeaky clean, or else, the law may not survive a court challenge.

The TikTok Ban is a Fact, but its Future Remains Uncertain

Enrichment Data:

Current Legal Status of TikTok in the United States

De Jure Ban: TikTok is currently under a de jure ban in the United States, following President Biden's signing of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) in January 2025.
Recent Developments: Initially set to trigger a ban unless ByteDance sold the app, the ban was postponed with a 75-day extension by President Trump, extended further to June 19, with TikTok services temporarily restored[4].

Evidence and Concerns Regarding National Security and Data Collection

National Security Concerns: Concerns center around TikTok's potential to influence U.S. elections or manipulate public opinion through content control. This stems from China's laws requiring companies to share data with the government[2][4].
Data Collection Practices: Fears persist that the Chinese government could access and manipulate user data gathered by TikTok, posing a threat to national security. These concerns are intensified by allegations of TikTok employees inappropriately accessing American journalists' data, sparking FBI and DOJ investigations[2][4].
Social and Political Implications: Critics point to TikTok's suppression of anti-Chinese content as evidence of its role in serving Chinese interests[2].

Public Perception

Public Opinion on the Ban: Support for a TikTok ban has declined, with only about a third of Americans now in favor, down from half two years earlier. Concerns about data security and Chinese ownership remain primary reasons for those supporting a ban[1][3].
Perception of TikTok as a Threat: About 49% of Americans see TikTok as a national security threat, down from 59% in 2023[1].

The TikTok ban, signed into law by President Biden, currently stands as a de jure ban, but its future remains uncertain due to TikTok's planned court challenge.
According to legal experts, the forced sale or ban of TikTok leads to speech restrictions for TikTok itself, its users, and the App Stores, requiring significant offenses by TikTok for such restrictions to be justified.
Eric Goldman, Professor of Law at Santa Clara University, expressed skepticism about the government's national security justifications for the TikTok ban, stating that these arguments have not been particularly effective in the past for regulation.
Despite concerns about TikTok's data collection practices and potential Chinese government access to user data, comprehensive evidence has yet to be provided, and this lack of evidence may weaken the government's case against TikTok in a potential court challenge.