H.R. 8038: TikTok on a Timer

On April 24th, President Biden signed H.R. 8038, or the 21st Century Peace Through Strength Act, into law. The multilateral legislation covers sanctions, money laundering, and foreign monetary aid. [1]  However, a section of particular interest is Section D - Protecting Americans from Foreign Adversary Controlled Applications Act. This section of H.R. 8038 prohibits any website or app from being owned or controlled by, specifically ByteDance Ltd, TikTok, or another company that poses a significant threat to the United States as determined by the President with public notice. [2] While Section D specifically targets one application, it also opens the door for the President to call for the sale or ban of other applications in the future. 

ByteDance will now have less than 270 days to sell TikTok or face a nationwide ban, with a potential extension of 90 days if they take significant action to sell before then. [3] TikTok has already vowed to fight the bill in court, a process that could take years to settle. [4] 

The likely conflict will be over the government's ability to ban media under the value of national security without violating the First Amendment. There has already been a preliminary example of the issues that the federal government may face in attempting to force the sale of TikTok. In 2023, the Montana State Senate passed S.B. 419, which banned the use of TikTok within Montana based on consumer protection. [5]

There are two primary reasons that S.B. 419 cites for the banning of TikTok within Montana. The first is that TikTok gathers significant amounts of data on its users, which the bill claims the Chinese Communist Party can access and use to conduct international espionage in Montana. Second, the bill claims that TikTok fails to remove content that promotes minors participating in dangerous behavior like throwing objects at cars, taking excessive medication, and many others. [6] If further reasoned, S.B. 419 does not regulate speech and instead merely regulates what conduct is allowed within its borders. [7] 

U.S. District Judge Donald Molloy was unconvinced by these arguments. In his opinion, he wrote that unlike other laws regulating conduct, this one targets one specific entity, TikTok. He also rejects the claim that S.B. 419 does not regulate speech. TikTok users would be denied the ability to communicate using their preferred method, which justifies considering its implications on the First Amendment. [8] 

Judge Molloy granted a preliminary injunction to the plaintiff, a small business owner who uses TikTok to advertise her business. The judge cited that Montana’s law was too broad in restricting the First Amendment, which historically requires a very specific restriction. [9]

While H.R. 8038 is clearly designed to target TikTok specifically, it does allow for other applications to face the same treatment. [10] Perhaps that change will protect H.R. 8038 from the same issue that S.B. 419 faced. Questions remain on whether this law is specific enough to be a reasonable restriction on the First Amendment. Regardless, the answers will likely take years to find, and it’s unlikely that TikTok is going away any time soon.

[1] 21st Century Peace Through Strength Act, H.R. 8038, 118th Cong. (2024) at 2-3.

[2] Id. at 66-67.

[3] Id at 59-60.

[4] Zheping Huang, TikTok Vows Legal Battle as the US Presses for App’s Sale or Ban (April 21, 2024, 11:18 PM), https://news.bloomberglaw.com/mergers-and-acquisitions/tiktok-vows-legal-battle-as-the-us-presses-for-apps-sale-or-ban. 

[5] Alario v. Knudsen, Lead CV 23-56-M-DWM Member CV 23-61-M-DWM (2023) para. 3.

[6] Id para. 10.

[7] Id para. 13.

[8] Id para. 15.

[9] Supra note 4.

[10] Supra note 1 at 66.