TikTok and its parent company argued in federal court in the District of Columbia on Thursday that the recently enacted law forcing a nationwide ban or sale of the popular platform violates the First Amendment.
TikTok Inc., which operates the video-sharing service in the United States, and its parent company ByteDance Ltd., which was founded by a Chinese national, filed lawsuits. a brief before the U.S. Court of Appeals for the DC Circuit the law President Joe Biden signed an unprecedented restriction on the constitutional right to free speech in April.
“Never before has Congress specifically singled out and shut down a particular forum for free speech,” the letter states. “Never before has Congress silenced so much free speech with a single act.”
Upholding such an “extraordinary speech restriction” would require the court to “take a close look” at Congress’ actions. However, Congress provided only a hypothetical national security argument for passing the bill, the companies said.
“Congress has provided almost nothing for this Court to review,” the brief continues. “Congress has made no findings, so there is no way to know why the House and Senate majorities decided to ban TikTok.”
Many individual lawmakers who supported the bill raised national security concerns, saying ByteDance’s relationship with the Chinese government meant the country’s Communist Party leadership could demand access to TikTok users’ private data.
They also said the platform, which the company says has 170 million users in the U.S., could be used to spread propaganda.
But under U.S. Supreme Court precedent, classifying speech as foreign propaganda does not allow the government to ignore First Amendment protections, TikTok said in its brief.
Speculation about how the app “might” or “possibly” be used, and no concrete examples of misconduct, were not enough to overcome the high hurdle for restricting speech, the companies added.
“A claim of national security does not take precedence over the Constitution,” the companies wrote on Thursday.
A spokesperson for the Justice Department, which is defending the law, emphasized the intelligence community’s national security concerns about TikTok and said the law is consistent with the First Amendment.
“This bill addresses critical national security concerns in a manner consistent with the First Amendment and other constitutional limitations,” the spokesperson wrote in a statement to States Newsroom. “We look forward to defending the bill in court.”
“The Department of Justice, along with other members of our intelligence community and Congress, has repeatedly warned of the threat posed by autocratic states that can weaponize technology – like the apps and software that run on our phones – against us. That threat is exacerbated when these autocratic states require the companies they control to secretly share sensitive data with the government.”
Answer to the legislator
The letter states that Congress has not made any official findings of harm caused by TikTok, but several individual members have raised specific concerns about the type of speech found on the platform.
The companies said Thursday that these specific complaints bolster the argument that TikTok is being denied free speech protections.
The brief quotes several statements from MPs:
- Republican U.S. Senator Mitt Romney of Utah, Democratic U.S. Representative Raja Krishnamoorthi of Illinois, the ranking lawmaker on the House Select Committee on China, and former Rep. Mike Gallagher of Wisconsin, who chaired the committee, said the platform’s algorithm delivers an overwhelming share of pro-Palestinian content rather than videos favoring Israel.
- Senator Tom Cotton, a Republican from Arkansas, said the platform “exposes children to harmful content.”
- Senator John Fetterman, a Democrat from Pennsylvania, said the bill would “make TikTok safer for our children and national security.”
- Nebraska Republican Senator Pete Ricketts pointed to the popularity of the hashtag #StandwithKashmir, which protests against the policies of India, a geopolitical rival of China.
“Lawmakers’ perceptions of the content played on TikTok were misguided,” the companies said. “But whether justified or not, government surveillance of content disparities runs counter to the First Amendment.”
Oral negotiations in September
Both houses of Congress passed the bill with bipartisan votes as part of a package that also included aid for Israel and Ukraine. Biden signed the measure April 24th.
TikTok announced lawsuit and filed his lawsuit Last month.
Tuesday’s brief details the company’s arguments. The government’s response is due July 26, with oral argument scheduled for September 16.
Divestment not feasible, says TikTok
TikTok and ByteDance said on Thursday that the bill’s provision to avoid a ban by selling the service to a company with no ties to China was not feasible, especially within the nine-month period required by law.
Such a move would be technically complicated and require years of development, the companies said, and would isolate the U.S. user base from the rest of the world and limit advertising revenue.
And even if it were feasible from a technical or business perspective, the sale of the platform would likely be rejected by the Chinese government, which has the authority to block the export of technologies developed in the country, the companies said.
