There’s now a U.S. law that could lead to a TikTok ban. Is it constitutional?

Unless TikTok is sold within 270 days, the app could face a ban in the U.S. app stores and hosting services.

Congress passed the TikTok measure in a 184 page bill bundled together with a foreign aid package on Tuesday night. President Joe Biden issued a statement after the bill passed saying he would sign it into law, which he has done.

At this point, it’s looking like TikTok will challenge the law in court and it’ll be scrutinized. Here’s a closer look at what legal experts have to say about the constitutionality of the measure and how Utah politicians voted on it.

Is the TikTok measure constitutional?

While it’s not exactly common for the government to force the sale of a major social media company, it isn’t the first time it has happened.

The Committee on Foreign Investment in the United States told the Chinese gaming company Beijing Kunlun Tech that its ownership of an online dating app raised national security concerns.

The app was sold off to a California-based group. That scenario differs from the TikTok situation in that Congress passed a law forcing the sale of the social media company rather than a committee demanding the sale.

This particular legislation around TikTok is tailored toward national security concerns rather than mental health issues or usage of the app by children.

“Beyond the immediate privacy implications, there are fears that TikTok could be leveraged as a tool for misinformation campaigns and data collection by foreign actors, particularly the Chinese government,” Lisa Plaggemier, executive director of the National Cybersecurity Alliance, said in a statement, adding that the interactive nature of the app could make it vulnerable to actors “seeking to undermine national security or advance foreign interests.”

If TikTok challenges the law in court, as it has stated it will, the court will likely employ a legal test known as strict scrutiny. This test determines if the law is constitutional based on if there’s a compelling governmental interest and if the law is written narrowly enough to address that interest.

William S. Duncan, constitutional law and religious freedom fellow at Sutherland Institute, said the question of whether or not the TikTok measure in the bill is constitutional is complicated.

It would be a different scenario if Congress has passed a law directly going after free speech, Duncan said. “In this case, the ban actually is only a potential ban.” It’s also possible that ByteDance could sell off TikTok within the allotted time frame.

Since the law is presented as a national security claim, Duncan said the court could find that the government has shown a compelling reason to limit free speech or religious freedom. It’s more complicated than a traditional First Amendment case because “the courts will have to decide whether there’s an overwhelming reason that the government might want to protect American users’ personal data from what the bill characterizes as a hostile foreign entity.”

But there’s a second part of the strict scrutiny test — whether or not the courts will find that the law is tailored narrowly enough to address the compelling government interest.

“I think the court is going to look and say, is there a way that you could have kept this information secure without also infringing on other kinds of rights,” said Duncan.

Duncan referenced a Hobby Lobby case that made it up to the Supreme Court. There, the court said it wasn’t necessarily going to decide if the government had a compelling interest in wider access to birth control. But assuming it did, the court said the government could use avenues other than compelling Hobby Lobby to distribute birth control despite religious objections.

The question around TikTok might be similar. “If you can establish that TikTok is doing something or potentially could do something that implicates national security, then the courts will want to establish if there’s a way of keeping that information secure that doesn’t potentially limit the ability of people to express their opinions.”

Whether or not TikTok could employ a free speech argument in court as it fights the law remains to be seen. Some see the law as a ban cloaked by language around national security and believe it doesn’t pass First Amendment muster.

“This is still nothing more than an unconstitutional ban in disguise,” Jenna Leventoff, senior policy counsel at the ACLU, said in a statement. “Banning a social media platform that hundreds of millions of Americans use to express themselves would have devastating consequences for all of our First Amendment rights, and will almost certainly be struck down in court. The Senate must strip these provisions from the bill.”

Paul Matzko and Jennifer Huddleston, policy scholars at the Cato Institute, have argued that there’s precedent working against the government in potentially banning TikTok. Pointing back toward Lamont v. Postmaster General — a case about Americans’ ability to subscribe to foreign communist periodicals — the court ruled Americans should have access to these materials.

The TikTok question is similar, Matzko and Huddleston, wrote for The Dispatch. “The federal government does have a legitimate interest in protecting the American people from surveillance by foreign governments. But the powers being sought by Congress represent the most radical options on the table, when other alternatives could better balance security and the protection of users’ free speech rights.”

Previous attempts at TikTok bans and legislation around social media in general has faced challenges in court. Montana tried to the ban the app and then TikTok filed a suit in the U.S. District Court for the District of Montana. A federal judge blocked the law saying that it likely infringed upon free speech rights.

Much of the ruling dealt with the First Amendment. Judge Donald W. Molloy also indicated skepticism in his ruling that a state has constitutional authority in the field of foreign affairs. The judge also said the state failed to supports it argument that China exerts control over TikTok with enough evidence.

The Trump administration also made a move in Sept. 2020 to prevent TikTok from being downloaded in app stores due to national security threats. The administration also attempted to ban transactions between Americans and ByteDance.

Before its implementation, U.S. District Judge Carl Nichols blocked the law calling it “arbitrary and capricious.” He also indicated that the administration should have found a less restrictive way to address the issue of national security.

For its part, TikTok has indicated it will battle the newly passed measure in court. A statement from the company issued Wednesday said, “The fact is, we have invested billions of dollars to keep U.S. data safe and our platform free from outside influence and manipulation.”

TikTok CEO Shou Zi Chew said in a video posted to social media, “We are confident, and we will keep fighting for your rights in the courts. The facts and the Constitution are on our side and we expect to prevail.”

How did Utah politicians vote on the TikTok measure?

Rep. John Curtis, R-Utah has spoken to the Deseret News multiple times over his support of the TikTok measure in the bill. On Wednesday morning after the Senate had passed the bill, he said it was reasonable and a good compromise.

Curtis referenced the instance where TikTok had a screen where users could input ZIP code and call a member of Congress to voice opposition to the bill. “We had hundreds of calls, perhaps thousands of calls, to our office from people who were simply checking the box,” he said.

“Imagine if this had been Election Day and they lock out 120 million U.S. users until they watch a video produced by the Chinese Communist Party about who they should for,” Curtis said. “That is not something that we can sit back and take lightly.”

Emphasizing that the measure was not a outright TikTok ban, Curtis said it’s time for Congress to learn how it can regulate social media. He gave credit to states including the Beehive State for determining where the legal lines are around social media legislation. He said the country is watching to see how we can deal with these issues.

Curtis voted for the bill containing the TikTok measure. Utah’s all-Republican House delegation of Reps. Curtis, Blake Moore, Burgess Owens and Celeste Maloy were united on the TikTok measure.

Utah Sens. Mike Lee and Mitt Romney were split on both the passage of the bill and the measure regarding TikTok. Lee has previously criticized the TikTok measure for giving too much power to the executive branch since it would give the president the power to identify an application controlled by “a foreign adversary” that poses a national security threat and similarly force a sale. He voted against the bill.

Romney voted for the bill. “After months of needless delay, Congress has finally approved much-needed funding for Ukraine, Israel, Taiwan, and the U.S. military’s operations in these keys regions,” Romney said in a statement after the bill’s passage. “Just as I did in February, I again voted for this legislation because it is very much in America’s interests to support our friends and allies in the face of threats from Russia, China, and Iran.”

Contributing: Suzanne Bates