In a recent survey conducted by NPR, six legal scholars specializing in constitutional law unanimously voiced their concerns that forcing TikTok to shut down its American operations based on vague national security grounds would likely infringe on the First Amendment rights of TikTokkers. The survey comes in response to TikTok's legal challenge against the Biden administration's law that would ban the popular video app unless it fully separates from its Chinese parent company, ByteDance, within the next year.

Lawmakers and the White House have justified the crackdown on TikTok by claiming that the app's connection to Beijing poses a national security threat. However, supporters of the ban have yet to present direct evidence of the Chinese government attempting to access data from the company or influencing its content. Legal scholars suggest that the burden is on the government to demonstrate credible harms and that their response would effectively mitigate those harms. So far, the government has not met this requirement, at least in the public domain.

Evelyn Douek, a professor at Stanford Law School with a focus on online speech, emphasized that the First Amendment prohibits the government from shutting down speech based solely on hypothetical or potential national security risks. Douek argued that the government must prove both the reality of the threats and the effectiveness of their proposed solution. A spokesperson from the Justice Department stated that they look forward to defending the law in court and argued that it is consistent with the First Amendment and other constitutional limitations.

Legal experts suggest that if the government wants to justify the ban, they will have to prove in court that it is the least restrictive way of dealing with the asserted national security threat. The ban on TikTok is likely to be examined under "strict scrutiny," a legal standard where speech can only be limited when there is a compelling government reason and the solution is as narrow as possible. Critics argue that a ban on an entire social media platform seems contrary to this narrow solution principle.

Supporters of TikTok's efforts to address the government's security concerns point to "Project Texas," a $2 billion plan presented by TikTok that aimed to create a data firewall between the app's U.S. user data and ByteDance's Chinese headquarters. However, the plan failed to ease concerns as it did not involve a complete separation from ByteDance. Additionally, reports indicate that data still flows between U.S. personnel and those in China, and ByteDance retains control over TikTok's algorithm. TikTok has been engaged in talks with the Committee on Foreign Investment in the U.S. for five years, but reaching a resolution has proven challenging due to regulatory obstacles in China.

Douglas Laycock, a constitutional law expert at the University of Virginia, noted that the government will likely argue that the case is about a security threat and not a matter of censoring speech. However, experts believe it will be difficult to avoid the constitutional implications surrounding free speech.

The outcome of the case could hinge on the Department of Justice's ability to present compelling evidence in court, as the public campaign against TikTok has failed to cite specific instances of the Chinese government using the app as a cyberweapon. Legal experts emphasize the need for exceptional evidence to justify such an exceptional measure adopted through an exceptional procedure. First Amendment advocates argue that the shutdown of an entire speech platform should not be accepted without substantial evidence.

As the legal battle intensifies, the future of TikTok in the United States remains uncertain. The case will undoubtedly shape the ongoing discussions around national security, free speech, and the regulation of social media platforms.