Ken White, a First Amendment litigator at the law firm Brown White & Osborn, said courts can and do look at whether the functional effect of a law is to stifle speech, not just what the text of the law says. Lawmakers may try to say the bill regulates TikTok's foreign ownership, not content. But, White said, "'foreign influence' aren't magic words that get you out of First Amendment problems. It's not at all clear that Congress' fig leaf of an excuse will work."
An important part of First Amendment scrutiny will be whether lawmakers could have achieved their goals through a "less restrictive alternative" to a flat-out ban, said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. Passing a nationwide privacy law regulating how all companies, not just TikTok, handle Americans' data would lead to the same result without raising First Amendment concerns, he said.
