Montana’s statewide ban of TikTok was also
halted last year by a federal judge, who wrote that it had a “pervasive undertone of anti-Chinese sentiment” and “violates the Constitution in more ways than one.”
The judge, Donald Molloy, also rejected the argument that a ban was acceptable under the law because users could still speak on other platforms, saying that limits on speech should be targeted and precise — a “constitutional scalpel.”
Molloy did not, however, weigh in on a separate legal debate: whether government actions like the House’s TikTok bill would violate the Constitution’s “bill of attainder” clause, which prohibits using legislation to punish a person for an alleged crime without a trial.
Some lawmakers have argued that any bill singling out a particular business would violate that clause. Sen. John Thune (R-S.D.) argued last year against naming TikTok in legislation being considered then,
saying, “There is reason to believe that legislation targeted solely at TikTok would be overturned by the courts because of the Constitution’s prohibition on bills of attainder.”
The bill names TikTok but says it would apply to all apps the government decrees are “controlled by foreign adversary companies.” But TikTok and its supporters have pointed to what they say are indications from the bill’s sponsors that the bill was unfairly targeted at them — including, most notably, that
the bill document published online last week was titled “TIKTOK.XML.”
Brendan Carr, a Republican on the Federal Communications Commission and vocal TikTok critic, circulated a memo in recent days arguing the bill would not violate the clause because it was instituting future restrictions, not focusing on the past.[/SIZE][/SIZE]
Brendan Carr, a Republican on the Federal Communications Commission, has circulated a memo in recent days challenging an argument by some lawmakers that the House TikTok bill would violate the Constitution’s “bill of attainder” clause, which prohibits using legislation to punish a person for an alleged crime without a trial. (Jabin Botsford/The Washington Post)
And a September report by the nonpartisan Congressional Research Service noted that China’s Huawei Technologies and Russia’s Kaspersky Lab had previously failed in challenging restrictions on their U.S. businesses based on bill of attainder arguments.
The bill’s proponents have tried to distance themselves from a ban, believing a forced sale would be more legally watertight. Biden’s national security adviser, Jake Sullivan, on Tuesday said he wanted “to be clear” that the bill was not about banning TikTok. “The ultimate object of the bill is about a question of ownership,” he said. “Do we want TikTok as a platform to be owned by an American company or owned by China?”
But they could be undermined by recent comments from supporters like Crenshaw, who posted on X last week, “No one is trying to disguise anything. You’re correct — we want to ban TikTok.” (Crenshaw has since said the bill is not a ban.)
TikTok supporters also have argued that a sale within 180 days would be so challenging to maneuver that a ban might be inescapable. China has said it would oppose a forced sale using export-control measures, and TikTok’s estimated price tag, in the tens of billions of dollars, would put it in the realm of only the biggest corporate giants, for whom federal regulators may have antitrust concerns.
The bill’s backers have noted that there is, however, some precedent for restrictions against foreign ownership of broadcast media in the United States. In the Communications Act of 1934, Congress prohibited foreign individuals and companies from being majority owners in U.S. public radio and TV stations, stemming from national security concerns raised during World War I.
The restriction remains in place today, though it does not affect cable TV, and the FCC may grant exceptions. The FCC does not have authority to regulate the likes of TikTok or YouTube, and it is unclear if judges would consider the measure similar enough to count as legal precedent.
The House bill affecting TikTok was drafted with support from senior Biden administration officials, including Deputy Attorney General Lisa Monaco and top officials in national intelligence and defense. Sarah Kreps, director of Cornell University’s Tech Policy Institute, said the co-sponsors and the White House seem “fairly confident” it will be inoculated against constitutional concerns.
Supporters of TikTok outside the Capitol on Wednesday. The video app’s defenders note that it is used by lawmakers, journalists, political organizers and even Chinese dissidents to share their views and learn information. (J. Scott Applewhite/AP)
But the country’s precedent for national security outweighing free speech, Kreps said, is built on decades-old cases from times of military conflict, such as the 1798 Sedition Act, which criminalized “false, scandalous and malicious writing” about the federal government.
“Once national security is invoked, it gives almost unfettered latitude for the government to sidestep First Amendment concerns, because now this is almost like a wartime footing,” Kreps said. “It is unusual that this would take place outside a wartime circumstance. But the framing of this legislation is invoking that kind of threat.”
The FCC’s bans on foreign ownership of radio and TV stations were first imposed during a time of limited airwaves, not a sprawling global internet. “It does feel in that sense that we’re going back to some kind of Cold War-like media environment,” Kreps said, “where we’re now going to erect boundaries in the service of national security.”
TikTok’s defenders note that the app is used by lawmakers, journalists, political organizers and even Chinese dissidents to share their views and learn information. Since 2020, the number of TikTok users who say they get news on the app has almost doubled, according to the Pew Research Center, with a third of adults under 30 in the United States now using it to follow current events.