The US House Of Representatives has voted in favour of a law that would force TikTok’s China-based owner ByteDance to sell the social media app or face a ban in the country. However, sources have told Bloomberg that ByteDance sees a sale of TikTok as a last resort option, and that it will continue to fight the proposals in the US Senate and, if necessary, the American courts. 

That fight will centre on whether or not banning TikTok because of national security concerns violates the free speech protections provided by the First Amendment of the US Constitution. If it does, the act passed earlier today will be unconstitutional. 

Supporters of the act say it is worded in a way that circumvents First Amendment issues, but it’s not just TikTok that argues otherwise. Plenty of free speech campaigners and legal experts say the TikTok ban should be blocked on First Amendment grounds. 

Ahead of today’s vote in the House, numerous campaign groups sent a letter to Speaker Of The House Mike Johnson and House Minority Leader Hakeem Jeffries urging them to oppose the act. The groups, including the American Civil Liberties Union and Electronic Frontier Foundation, said "Passing this legislation would trample on the constitutional right to freedom of speech of millions of people in the United States".

"TikTok is home to massive amounts of protected speech and association”, their letter continued, “it enables its users to discuss their opinions, share their hobbies, make art, and access news from down the street and around the world. Jeopardising access to the platform jeopardises access to free expression". 

The Protecting Americans From Foreign Adversary Controlled Applications Act would give ByteDance six months to sell TikTok before any ban of the app went into effect. The proposals still need to be backed by the US Senate and then signed into law by the President, though Joe Biden has already said, "If they pass it, I'll sign it". 

The act is the latest in a number of attempts to disconnect TikTok from ByteDance, based on concerns that the Chinese government has access to US user-data through its China-based owner, something TikTok denies. Only introduced into the House last week, the act was unanimously approved by the House Energy And Commerce Committee within days and then passed by a full vote in the House earlier today, with 352 votes in favour to 65 against.

Previous attempts to ban TikTok in the US - including via an executive order issued by Donald Trump and a state-level law passed in Montana - were stalled in the courts on free speech grounds. If TikTok’s lobbyists and supporters in Washington can't kill the proposed act in the Senate, then plenty of legal action through the courts will almost certainly follow. 

Anyone thinking that ByteDance might be starting to think that this all sounds like a big old hassle, and that a speedy megabucks sell off might be an easier option, would be wrong. According to Bloomberg's sources, for ByteDance, a sell off is the absolute last resort. Not least because divesting TikTok would also require approval from the Chinese government, which has previously said it would firmly oppose a forced sale. So that would be quite a big hassle too. 

Optimists at TikTok still hope that the company's ongoing work with American software company Oracle, called Project Texas - which is putting in place data management systems that seek to allay the data security concerns that have been raised - can still keep enough politician decision makers on board. Meanwhile the lawyers will be preparing to take those First Amendment arguments to court should the new act get Senate approval. 

And those arguments may succeed. Chinmayi Sharma, an associate professor at Fordham University School Of Law, told Law360 this week that it is hard to see how the proposals, as currently drafted, would "get by First Amendment issues". 

She explained, "This proposal is still something that's restrictive of speech that would otherwise be legal, and it's a very high bar to show that there is enough of a compelling state interest in restricting speech to pass muster under the First Amendment".

UPDATE 13 Mar 2024, 3.30pm: This story has been updated from the original version to reflect the result of the vote in the House Of Representatives.

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