TikTok needs free speech arguments to overcome Trump's broad powers to ban

TikTok Inc. sued President Donald Trump to overturn his Aug. 6 executive order that in effect will ban the Chinese-owned social media app in the U.S. next month. TikTok said in its lawsuit that the order was motivated by election-year politics and that Trump exceeded his authority because there’s no real national emergency justifying the order.

“Now is the time for us to act,” TikTok said in a statement announcing the Aug. 24 complaint in Los Angeles federal court. “We simply have no choice.”

How quickly will the lawsuit play out?

The Justice Department may make the first move by asking for dismissal of the case, which will require TikTok to respond. But it’s unlikely a judge will take any action before Sept. 20, the date that the president’s vaguely worded order takes effect.

That’s when the U.S. Commerce Department will issue more clarification on what transactions by U.S. residents and businesses will be prohibited. TikTok said it will amend its complaint and ask for an injunction once it learns those details. The Justice Department didn’t respond to a request for comment on the lawsuit.

What are TikTok’s claims?

The company argues that putting it out of business in the U.S. without adequate notice and a fair chance to respond deprives it of its due-process rights in violation of the Constitution.

TikTok also says there are no grounds for the president to invoke the International Emergency Economic Powers Act, or IEEPA, because the company doesn’t pose an “unusual and extraordinary” security threat from outside the U.S.

In addition, the company claims its free-speech rights are being trampled because the president’s order would block all its videos, regardless of whether the content amounts to a security threat.

TikTok says that just because its parent, ByteDance Ltd., is based in Beijing, that doesn’t exclude the app from being fully protected by the Constitution just like any American company. The business is located in Culver City, California, and its senior management is based in the U.S., including the company’s chief executive officer.

Why does TikTok argue the president’s ban was motivated by politics?

The executive order includes allegations that the Chinese Communist Party may use TikTok data to spy on and to blackmail Americans, that TikTok “reportedly” censors content critical of the Chinese government, and that TikTok can be used by the Chinese government to spread misinformation.

TikTok asserts there’s no connection between it and the Chinese government, and that the Chinese government exerts no control over it.

Trump has stepped up his anti-China rhetoric as part of his re-election campaign. TikTok says the president harbors ill-will toward the app after users pranked his campaign rally in Tulsa, Oklahoma, by mass-ordering tickets and not showing up.

TikTok also argues that the president’s order ignores the proposed sale of the U.S. business to Microsoft Corp. that would presumably resolve the alleged national security concerns. Instead, Trump came back with a demand that the U.S. treasury get “a lot of money” from the sale, which undermines the administration’s national security concerns, TikTok said.

Is TikTok likely to prevail?

TikTok may have a hard time convincing a judge that Trump overstepped his authority because the IEEPA gives “wide delegation of authority to the president to act on national security grounds,” said David Engstrom, a professor at Stanford Law School.

Engstrom pointed to the Supreme Court’s ruling that largely upheld the president’s travel ban on visitors from several mostly Muslim nations. The high court concluded that Trump’s national security concerns outweighed anything he said on the campaign trail that was disparaging to Muslims.

Judges may also be inclined to take a hands-off approach to the TikTok ban because of the complexity of the Chinese government’s relationship to Chinese companies, Engstrom said.

TikTok may fare better with its constitutional claims.

“If there were ever a case to challenge the president on using national security powers without an adequate basis, thbyis may be the one,” said James Dempsey, executive director of the Berkeley Center for Law & Technology at the University of California at Berkeley.

The fact that TikTok is a social media company raises free-speech concerns under the First Amendment that are rarely present in past IEEPA cases, according to Engstrom.

Can TikTok avoid getting sold if the lawsuit succeeds?

Maybe not. Trump has separately ordered ByteDance to sell its U.S. TikTok business based on a finding by the Committee on Foreign Investment in the United States that the business poses a security risk. TikTok’s lawsuit doesn’t seek to undo that order and the company has offered to do as much to meet the U.S.’s security concerns.

Historically, legal challenges to CFIUS orders have not succeeded because of the deference courts give to the executive branch. Then-President Barack Obama relied on CFIUS in 2012 to stop Chinese-owned Ralls Corp. from developing a wind farm near a Navy base in Oregon. While Ralls put up a formidable fight in court, it was ultimately forced to dispose of the wind farm.