Hours before a bill that could ban TikTok rocketed through the Senate last week, two key lawmakers took to the floor and spent 17 minutes in a scripted conversation listing the national security dangers associated with the app.
The unusual exchange wasn’t the typical C-SPAN Senate theater: It was a preemptive defense against a court challenge they knew was likely to come.
The tactic by Sens. Maria Cantwell (D-Wash.) and Mark Warner (D-Va.) highlights the wide range of uncertainties around the TikTok law — a historically unusual piece of legislation that demands the app be sold by its Beijing-based owner, ByteDance, or banned from the U.S. market.
TikTok calls the law unconstitutional and has promised a quick and aggressive challenge on First Amendment grounds. Legal experts say the speed with which the law moved could help TikTok’s case, especially if a court finds that Congress pushed it through without seriously weighing its implications for free speech.
The legislative record on the TikTok law may be too thin to support “such a significant and unprecedented state intrusion on free expression,” said Anupam Chander, a Georgetown University professor who specializes in international tech regulation.
The TikTok bill, added last week onto a complex foreign aid package, never had a Senate hearing with public testimony.
In the House, which originally passed a version of the bill in March, it had an unusually short public hearing and markup, taking less than an hour total — a 20-minute legislative hearing followed by closed-door, classified testimony from Biden intelligence officials and a 33-minute markup that led to a 50-0 vote. The Senate Commerce and Intelligence committees also got a classified intelligence briefing in March.
Cantwell had raised constitutional concerns about the March version of the bill when it was sent to the Senate Commerce Committee, which she chairs. Along with Warner, who chairs the Senate Intelligence Committee, she and the House bill sponsors agreed on a new version with only one significant change, which extended the sale time from six months to one year.
To put those remaining Constitutional concerns on the record, Cantwell proposed the scripted floor remarks — technically known as a colloquy — so it can be referred to in any potential case in court, a Cantwell spokesperson told POLITICO. The colloquy included language that Cantwell had initially proposed adding to the bill, and sought to make clear that it was intended as national security policy, not a punitive act against a Beijing-linked company.
“Congress is not acting to punish ByteDance, TikTok or any other individual company,” Cantwell read into the record. She said it was seeking to “prevent foreign adversaries from conducting espionage, surveillance, maligned operations, harming vulnerable Americans, our servicemen and women, and our U.S. government personnel.”
She also introduced into the record a House resolution on Tuesday — which never became law — and a House committee report, both outlining the risks of the Chinese government accessing American data from ByteDance.
TikTok’s Singapore-based CEO Shou Zi Chew said in a video on Wednesday, soon after President Joe Biden signed the bill, that the company was confident in its legal case. “Rest assured, we aren’t going anywhere. The facts and Constitution are on our side and we expect to prevail again.”
Legal experts say these floor remarks and record may not help the law’s chances in the U.S. Court of Appeals for the District of Columbia Circuit, where any case will be brought. It also could face tough odds at the Supreme Court, where it’s expected to end up.
“I don’t think it would be particularly effective in terms of a court looking at it as a record of justification,” said Kate Ruane, director for the Center for Democracy and Technology’s Free Expression Project. “It’s not as good as having built a strong congressional record based on public evidence that this is absolutely necessary.”
Warner’s team disagreed. “Between the colloquy and the House resolution, we are confident there is more than enough in the congressional record to dispel this notion,” Rachel Cohen, Warner’s spokesperson, told POLITICO.
Additionally, FBI Director Chris Wray has testified publicly multiple times before Warner’s committee — which is part of the legislative record — saying TikTok is a tool under the control of the Chinese government that “screams out with national security concerns.”
The overall success of a First Amendment case in court remains uncertain.
“It’s a toss-up,” said Jim Lewis, a senior vice president at the Center for Strategic and International Studies. “The courts usually defer to the president on national security, but in the past, the First Amendment overrides that, so it’s not a clear cut case.”
Federal courts have sided with TikTok in two previous cases. In 2020, federal judges blocked the Trump administration’s executive order to ban TikTok, finding it likely exceeded the president’s legal authority. And last November, a federal judge ruled a Montana law banning TikTok likely violated the First Amendment.
Free speech experts say that the government hasn’t publicly proven the national security threats.
“To justify a broad restriction of speech like this, the government has to show that it has enough to demonstrate those harms are real and that those harms are not merely speculative. And as of now, that burden has not been met,” said Nadine Farid Johnson, policy director at the Knight First Amendment Institute at Columbia University.
However, Nazak Nikakhtar, who worked on Trump’s TikTok executive order as an assistant secretary in the Commerce Department, said the speed and broad bipartisan support for the legislation proved it did make its case.
“Why has Congress come together in such a unique bipartisan way to do something that’s enormously unpopular? I think it’s because the evidence has mounted so much that they can no longer ignore it,” she said.
Some legal experts agree this time may be different. Historically, Sarah Kreps, director of Cornell University’s Tech Policy Institute, said, when the executive and legislative branches are in agreement, “courts have been much more reluctant to intercede with their own view, particularly on these matters of national security.”