"Framing this as a national security threat offers the government considerable latitude when it comes to First Amendment questions," Sarah Kreps, a political scientist and director of the Tech Policy Institute at New York's Cornell University, told Business Insider.
Kreps, also a government and law professor, explained that the government does not and should not approach restrictions on free speech lightly, "but when they do, the national security justification proves to be strong and robust to judicial repeal because courts do not want to be in a position to adjudicate the gravity of a particular threat."
If enacted, the bill dubbed the Protecting Americans from Foreign Adversary Controlled Applications Act, would force TikTok's Beijing-based parent company, ByteDance, to sell its US operations of the video-sharing platform to a non-Chinese company within six months or have to grapple with a nationwide ban on the app.
The bill, which a House of Representatives committee unanimously green-lighted in a 50-0 vote last week, says it seeks to "protect the national security of the United States from the threat posed by foreign adversary controlled applications, such as TikTok and any successor application or service and any other application or service developed or provided by ByteDance Ltd. or an entity under the control of ByteDance Ltd."
The Republican-controlled House is expected to vote on the bill on Wednesday.
"We must ensure the Chinese government cannot weaponize TikTok against American users and our government through data collection and propaganda," GOP Rep. Steve Scalise, the House majority leader, said this week.
Republican Rep. Cathy McMorris Rodgers, the chair of the House Energy and Commerce Committee, which voted to approve the bill, said in an interview with Fox Business on Tuesday, "This is a real national security threat."
"The bill is narrow," McMorris Rodgers said. "It is targeted to address the national security threat that we believe these apps, like TikTok, pose to the United States because of its ownership by a foreign adversary."
Kreps told BI that she was more confident this bill would go further than past attempts to ban TikTok in the US because the cosponsors of the bill appeared to have done "the legal legwork to identify the weaknesses of previous versions and address those concerns."
Still, the bill, if passed, is expected to face legal challenges by ByteDance and TikTok on First Amendment grounds, according to Kreps and other experts.
Citing national security is 'not a get out of jail free card'
Ramya Krishnan, a staff attorney at the Knight First Amendment Institute at Columbia University in New York, told BI that the US Supreme Court "has been very clear that invoking national security is not a 'get out of jail free' card for having to comply with the First Amendment."
"The First Amendment protects Americans' right to access social media platforms of their choosing," Krishnan said. "To justify a ban, the government would have to demonstrate that the privacy and security concerns it has can't be addressed in narrower ways."
"And the government simply hasn't done this," said Krishnan, who called the bill "unconstitutional" and said that a ban on TikTok "would set a dangerous precedent for how we regulate free speech online."
Though there's been evidence to suggest that TikTok suppresses content around political speech, the US government "hasn't pointed to any evidence that China uses TikTok's algorithm to promote disinformation," Krishnan said.
"More fundamentally," Krishnan, a lecturer at Columbia Law School, added, "the First Amendment doesn't permit the government to suppress media on the grounds that it contains disinformation."
TikTok has repeatedly denied allegations that it has ties to the Chinese Communist Party and has been fighting back against the new bill that could see the social media app banned.
In a statement last week, TikTok said the US government was "attempting to strip 170 million Americans of their Constitutional right to free expression."
"This will damage millions of businesses, deny artists an audience, and destroy the livelihoods of countless creators across the country," the statement continued.
Former President Donald Trump in Tulsa, Okla.AP Photo/Sue Ogrocki
Trump once supported a TikTok ban, but is now against it
Meanwhile, Trump — whose administration tried to ban TikTok in the US — but was blocked from doing so in court after TikTok sued — has now come out against a ban for the app.
"If you get rid of TikTok, Facebook and Zuckerschmuck will double their business," Trump argued on his social media platform, Truth Social, in a dig at Meta CEO and Facebook founder Mark Zuckerberg.
Before the House Energy and Commerce Committee unanimously voted to advance the bill, several groups, including the American Civil Liberties Union and the Center for Democracy and Technology, sent a letter to the committee urging members to oppose the bill that they called "censorship."
"We are deeply disappointed that the committee chose to ignore the serious First Amendment concerns raised by civil liberties groups and instead voted to advance this bill that would silence over 170 million people around the country who use TikTok every day," Jenna Leventoff, senior policy counsel at ACLU, said in a statement after the vote.
"When this bill comes to the floor for a vote, we urge representatives to stand up for free speech, and vote down this misguided bill," Leventoff said.
