TikTok Sues U.S. Government Over Law That Would Ban App, Alleges It’s ‘Obviously Unconstitutional’
As expected, TikTok filed a federal lawsuit seeking to overturn the U.S.’s new law that would force Chinese parent company ByteDance to sell the app — or face a nationwide ban.
TikTok and ByteDance filed the lawsuit Tuesday (May 7) in the U.S. Court of Appeals for the D.C. Circuit.
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“Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet,” the companies said in the suit. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.”
President Biden — even as his reelection campaign is using TikTok to reach younger voters — signed the Protecting Americans’ Data From Foreign Adversaries Act of 2024 into law on April 24. That came after it sailed through Congress with solid bipartisan support after House Speaker Mike Johnson attached it to an emergency foreign aid appropriations bill. In supporting the legislation, U.S. lawmakers have cited fears that TikTok represents a national security threat, potentially giving the Chinese government a way to spy on Americans or push pro-China propaganda through the video app. The law requires Beijing-based ByteDance to sell its stake in TikTok within nine months (with a potential 90-day extension to the deadline) to a party or parties not based in a country the U.S. designates a “foreign adversary” — and if it doesn’t, the distribution of TikTok would be outlawed.
The lawsuit filed by TikTok and ByteDance argues that the law is unconstitutional, because it violates Americans’ First Amendment rights to free speech.
“Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership,” the lawsuit says.
While supporters of the law have claimed it is not a ban because it offers ByteDance a choice — to divest TikTok’s U.S. business or be shut down — the lawsuit alleges that “in reality, there is no choice. The ‘qualified divestiture’ demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act.” The companies claim “a standalone U.S. TikTok platform would not be commercially viable” because “a substantial part of TikTok’s appeal is the richness of the international content available on the platform.”
“There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere,” the lawsuit says.
In addition, the TikTok-ByteDance suit argues the law violates their rights under the equal protection component of the Fifth Amendment’s Due Process Clause because it singles out TikTok “for adverse treatment without any reason for doing so.”
TikTok and ByteDance added in the complaint, “If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down.”
TikTok has previously won legal victories against similar attempts to outlaw the app on First Amendment grounds. A 2020 executive order by the Trump administration to force ByteDance to sell TikTok or face a ban was found unconstitutional by federal courts on First Amendment grounds. Last November, a federal judge blocked Montana’s first-of-its-kind statewide ban of TikTok, ruling that the law likely violated the First Amendment.
The suit seeks a declaratory judgment that the law violates the U.S. Constitution and an order enjoining the Attorney General from enforcing it as well as “any further relief that may be appropriate.” As is customary in such litigation, the lawsuit names U.S. Attorney General Merrick Garland as defendant “in his official capacity as Attorney General of the United States.”
In the suit, TikTok and ByteDance argue the law “opts for a wholesale prohibition” of TikTok “in lieu of a multitude of less restrictive measures it could have taken instead.” To wit, they claim they have “voluntarily” invested more than $2 billion to build a system of technological and governance protections, dubbed Project Texas, “to help safeguard U.S. user data and the integrity of the U.S. TikTok platform against foreign government influence.” TikTok’s American data security division reached an agreement with Oracle to store TikTok user app data in the U.S. as well as “to review and vet the TikTok source code.”
A copy of the lawsuit is available at this link. TikTok and ByteDance are being repped by law firms Mayer Brown and Covington & Burling.
TikTok has attracted free-speech advocates as allies in its fight against the divest-or-ban legislation including the ACLU and the Knight First Amendment Institute at Columbia University.
“Restricting citizens’ access to media from abroad is a practice that has long been associated with repressive regimes, so it’s sad and alarming to see our own government going down this road,” Jameel Jaffer, executive director of the Knight Institute, said in a statement. “TikTok’s challenge to the ban is important, and we expect it to succeed. The First Amendment means the government can’t restrict Americans’ access to ideas, information, or media from abroad without a very good reason for it — and no such reason exists here. The fact that some legislators have acknowledged that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend.”
SEE ALSO: Will TikTok Be Banned in the U.S.? What the New Law Means for the App’s Users
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