TikTok sues US over divestment or ban law, alleging it is unconstitutional

As expected, TikTok has filed a federal lawsuit seeking to overturn the new US 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. District Court of Appeals for the D.C. Circuit.

“Congress has taken the unprecedented step of specifically targeting and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share and view videos on the Internet,” the companies said in the suit. “For the first time in history, Congress has enacted legislation that subjects a single, named speech platform to a permanent nationwide ban and prohibits every American from participating in a single online community counting more than a billion people around the world.

President Biden — even though his reelection campaign is using TikTok to reach young voters — signed the Protecting Americans from Foreign Adversaries Act of 2024 on April 24. This came after it passed Congress with strong bipartisan support after House Speaker Mike Johnson. he attached it to an emergency appropriations bill for foreign aid. In supporting the legislation, U.S. lawmakers cited concerns that TikTok poses a national security threat, potentially giving the Chinese government a way to spy on Americans or promote 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 deadline extension of 90 days) to one or more parties not based in a country that the United States designates as a “foreign adversary” – and if he did not, the distribution of TikTok would be prohibited.

The lawsuit filed by TikTok and ByteDance argues that the law is unconstitutional because it violates Americans' First Amendment free speech rights.

“The ban on TikTok is so blatantly unconstitutional, in fact, that even the law's proponents have recognized this reality and have therefore tried forcefully to portray the law not as a ban at all, but simply as a regulation of owned by TikTok,” the lawsuit states.

While supporters of the law have argued that it is not a ban because it offers ByteDance a choice – divest TikTok's US operations or be shut down – the lawsuit alleges that “in reality, it does not There is no choice. The “conditional assignment” required by law to allow TikTok to continue operating in the United States is simply not possible: neither commercially, nor technologically, nor legally. And certainly not within the 270 day period required by law.

“There is no doubt: The law will force the 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.

Additionally, the TikTok-ByteDance lawsuit argues that the law violates their rights under the equal protection component of the Fifth Amendment's due process clause because it singles out TikTok “for unfavorable treatment without any reason to do 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 newspaper or website to sell to avoid being shut down.” »

TikTok has already won legal victories against similar attempts to ban the app on First Amendment grounds. A 2020 executive order by the Trump administration aimed at forcing ByteDance to sell TikTok or face a ban was ruled unconstitutional by federal courts on First Amendment grounds. Last November, a federal judge blocked Montana's first statewide ban on 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 barring the attorney general from enforcing it and “any additional action that may be appropriate.” As is customary in such litigation, the lawsuit names U.S. Attorney General Merrick Garland as a defendant “in his official capacity as Attorney General of the United States.”

A copy of the lawsuit is available at this link.

TikTok has attracted free speech advocates as allies in its fight against divestment or ban legislation, including the ACLU and the Knight First Amendment Institute at Columbia University.

“Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes. So it is sad and alarming to see our own government moving down this path,” Jameel Jaffer, executive director of the Knight Institute, said in a statement. statement. “TikTok’s challenge to the ban is important and we hope it succeeds. The First Amendment means that the government cannot restrict Americans' access to foreign ideas, information, or media without a very good reason—and no such reason exists here. The fact that some lawmakers have acknowledged that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law particularly difficult for the government to defend. »

SEE ALSO: Will TikTok be banned in the United States? What the new law means for app users

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