Earlier this week, Congress passed a bill giving TikTok’s Beijing-based parent company, ByteDance, up to a year to sell the app. If it doesn’t, per the bill, TikTok would be prohibited from U.S. app stores. It would also be banned from “internet hosting services” that support it, reports. Representatives for TikTok have expressed confidence that an outright ban won’t go into place and threatened legal action against the bill.
And, in his video, Tommy spelled out how the fight between the federal government and the video app would likely play out in court. First, he encouraged viewers to “take a deep breath.”
“The government has more of an uphill battle than TikTok does,” Tommy said.
Now that Biden signed the TikTok ban into law, Tommy predicted that TikTok would file a lawsuit in federal court alleging constitutional violations. Specifically, Tommy said, TikTok could argue that the law violates the First Amendment.
Anytime there’s a law passed that prohibits free speech, Tommy explained, the government has to come forward with what’s called a “substantial governmental interest.” In other words, they have to explain why the speech needs to be restricted.
“Congress has obviously teed this whole thing up as a national security issue,” Tommy said. “They’re going to argue that there’s a national security issue with the Chinese government spying on the Americans.”
The issue with that argument, Tommy said, is that the government has to prove that this so-called threat exists.
“So far I’ve seen no actual evidence of that,” Tommy said. “I’ve just heard politicians talking about it.”
Tommy also predicted that Congress would argue that the law isn’t technically a ban because lawmakers aren’t advocating for shutting down TikTok—rather, it’s giving the company’s parent company the chance to sell or risk getting shut down.
Still, Tommy expressed skepticism that the courts would see it that way.
“I still think the courts are still likely to view it as essentially a ban,” Tommy said.
At the very least, he conceded, the courts will likely see the measure as a restriction on free speech. And that might spell trouble for the ban, he said.
“Traditionally federal courts, in particular, look very, very suspect upon laws that restrict free speech,” he said, ending his video.
In the comments, viewers appeared dubious of the ban too. Some questioned why lawmakers targeted TikTok and not other apps, like Facebook or Instagram.
“But they let Facebook sell our data,” one person said.
“I don’t understand why they don’t pass a national cyber security law instead,” another questioned.
“Why don’t they do [this] to other social media like Facebook,” a third person asked.
