“We think there’s a First Amendment interest in providing continued access to that app and its functionality to the Chinese-American community,” Michael Bien, one of the plaintiffs’ attorneys, said Saturday.
Trump on Aug. 6 ordered sweeping but vague bans on transactions with the Chinese owners of WeChat and another popular consumer app, TikTok, saying they are a threat to U.S. national security, foreign policy and the economy.
Kyle Langvardt, a law professor at the University of Nebraska Lincoln, told Business Insider that Trump’s orders “are likely to have First Amendment problems.”
“The reason is that they discriminate based on the identity of the speaker (Bytedance, Tencent), and also, arguably, based on the ‘content’ of their speech,” Langvardt said.
Sounds like a ban would prompt challenges by TikTok and the app stores. What would they likely do?
Any scenario would create opportunities for legal challenges. A law or executive order that targets TikTok could spur a challenge under the First Amendment, Opsahl said. The challenges would be based on previous court rulings that show “code is speech,” Opsahl said. Such rulings include Bernstein v. DOJ, in which the court found a computer scientist had the First Amendment right to publish an encryption algorithm.
Leonard M. Niehoff, a professor from practice at the University of Michigan Law School who specializes in the First Amendment, spoke with Salon by email about Pompeo’s remarks. After noting that they were not specific enough for him to ascertain what if anything President Donald Trump is considering doing to TikTok, Niehoff argued that “to the extent that he’s suggesting a complete ban on a social media platform that is used by United States citizens to communicate with hundreds of millions of people worldwide, the proposal raises grave concerns under the First Amendment.” He acknowledged that people have accused TikTok of being a form of spyware and added “it’s difficult to assess the constitutionality of the measures without knowing exactly what the government wants to do and why it wants to do it.”