TikTok has sued the United States in an effort to halt enforcement of a recently-signed bill that is set to ban the app nationwide in a matter of months unless its Chinese-owned parent company ByteDance divests completely from the platform.
Filed with the US Court of Appeals for the District of Columbia Tuesday, the lawsuit argues that this law represents an unconstitutional violation of the First Amendment.
“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,” the lawsuit states.
Under the measure approved by a bipartisan vote of 79-18 in the Senate and signed into law by President Joe Biden (D), TikTok would be banned from all US app stores unless ByteDance sells the social media site within about nine months.
Division H of HR 815 — the Protecting Americans from Foreign Adversary Controlled Applications Act — originated as a standalone House bill in March where it was quickly approved by a strong bipartisan majority in a vote of 352-65.
The measure stalled in the Senate, however, before being added into the omnibus foreign aid package.
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Although this law is frequently referred to as a ban on TikTok, lawmakers have pushed back on this interpretation.
“Every national security official in the Biden administration has warned about the national security threat posed by TikTok under its current ownership structure,” said Rep. Mike Gallagher (R-WI) to CBS News. “That’s what we’re trying to get at. Not a ban, but a separation.”
In its lawsuit, TikTok argues that — despite these contentions — a nationwide ban on the app is the only realistic outcome of this legislation, thus sparking the company’s constitutional challenge.
“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. “They claim that the Act is not a ban because it offers ByteDance a choice: divest TikTok’s U.S. business or be shut down.”
“But in reality, there is no choice,” TikTok argues. “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.”
“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 states.
According to the lawsuit, requiring ByteDance to divest from TikTok would result in the isolation of US users from international content, as well as prevent them from accessing the platform’s signature recommendation algorithm.
TikTok suggests in their filing that the Chinese government would “assert its export control powers” to prevent this technology from being shared in the event that ByteDance divest from TikTok.
The filing goes on to suggest that even if this weren’t the case, it would be “extraordinary and unconstitutional” for the government to require a separation of the sort mandated by this bill.
“If upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created,” TikTok argues. “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 then references the Supreme Court’s ruling in the case of 303 Creative LLC v. Elenis to support their stance, citing the Justices’ contention that “speech ‘conveyed over the Internet’ fully qualifies for ‘the First Amendment’s protections.'”
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Toward the end of their filing, TikTok argues that it “has a First Amendment interest
in its editorial and publishing activities” and “‘is more than a passive receptacle or conduit for news, comment, and advertising’ of others.”
The platform goes on to contend that TikTok is itself a creator on the app, as it “create[s] and share[s] its own content about issues and current events, including, for example, its support for small businesses, Earth Day, and literacy and education.”
TikTok goes on to argue that Congress failed to “articulate any threat posed” by the platform, “nor explain why TikTok should be excluded from evaluation under the standards Congress concurrently imposed on every other platform.”
“Even the statements by individual Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence — even though the platform has operated prominently in the United States since it was first launched in 2017,” the lawsuit continues. “Those speculative concerns fall far short of what is required when First Amendment rights are at stake.”
“Congress must abide by the dictates of the Constitution even when it claims to be protecting against national security risks: ‘against [those] dangers . . . as against others, the principle of the right to free speech is always the same,'” TikTok concludes. “Congress failed to do so here, and the Act should be enjoined.”
As a result of this lawsuit, TikTok is asking the Court to declare that the newly-signed law is unconstitutional and enjoin Attorney General Merrick Garland from enforcing it.
Click Here to Read the TikTok’s Full Legal Filing Against the United States
TikTok has been subject to heightened scrutiny in recent months over data privacy concerns, as Chinese law requires the country’s businesses to share information with the government upon request.
Despite this law, TikTok CEO Shou Zi Chew has denied ever having shared U.S. users’ data with the Chinese government, stating before Congress that the company has begun taking steps to ensure that American data continues to remain shielded from Chinese officials, citing what has become known as “Project Texas.”
The $1.5 billion plan primarily entails transferring the data of US TikTok users to the cloud infrastructure of Oracle — a cloud company based in Austin, Texas — as well as restructuring their US operations to provide a greater level of transparency and oversight in an effort to increase American confidence in the platform’s security.
Regardless of this, both the federal government and a number of states had previously taken action to ban the download or use of TikTok on government-owned devices due to security concerns.
As of January 2023, 33 states — including Maine — had put in place some form of a ban on TikTok for government-issued devices.
These pinheads in DC are worried about Tik Tok? Meanwhile the southern border is wide open with who knows flooding across it while they twiddle their thumbs and enjoy their fancy cocktail parties in Georgetown. As long as you’re on the in-list for those you’re good to go. Tim Tok should be the last of their worries. Losers!