June 20, 2024
TikTok and eight US-based TikTok creators just came out swinging against the federal government.
Both the company and the creators filed their opening briefs with the US Court of Appeals in Washington DC today. They are asking the court to step in and rule the Protecting Americans against Foreign Adversary Controlled Applications Act overwhelmingly passed by congress in April and signed into law by President Biden is unconstitutional. They want the law which forces Bytedance to either sell its interest in US TikTok or face a ban on January 19th 2025….stopped.
TikTok gives a laundry list of laws they say congress crossed with this piece of legislation. They said “never before has congress silenced so much speech in a single act” “congress reached for a sledgehammer without even considering if a scalpel would suffice.”
They say it’s a flagrant violation of the first amendment not only of the free speech rights of 170 million US users but also a first amendment violation because congress is treating TikTok differently than other “foreign adversary controlled apps” which they say is an equal protection violation. Lawmakers who supported this law said TikTok was a ‘national security threat” because it could be used as a propaganda tool of the Chinese communist party because of it’s Chinese-based parent company Bytedance. TikTok’s brief says that’s ridiculous for several reasons. One they say –it’s absurd because of the $2 billion project Texas security system on US soil which put up a firewall to protect US user data …and two –even if foreign propaganda was on the platform, the Supreme Court ruled in the 1965 Lamont case that foreign propaganda is still considered protected speech under the first amendment. TikTok’s brief says “congress asserts the power to control the information Americans can receive whether it originates abroad or within the United States—a clearly improper purpose. Congress thus has no legitimate interest in insulating Americans from “divisive narratives,” whether or not that is called “propaganda.” Policing “disinformation” and “misinformation” is no less suspect. Subject to narrow, well-established exceptions not applicable here, speech does not lose first amendment protection because the government deems it untrue.”
TikTok also argues this law is a violation of Article I of the constitution the “bill of attainder clause” which states that congress cannot single out a specific person or group with legislative punishment. If you look at the actual law they passed – yes the title says “foreign adversary controlled applications” but it also specifically singles out TikTok and Bytedance several times.
The brief also says this law is a violation of the fifth amendment’s so-called takings clause which says the US government cannot take private property for public use without compensation.
TikTok’s brief goes on to say this law is wild with speculation but scarce on facts. They argue that lawmakers who supported this bill gave multiple reasons why it was necessary but never showed any actual proof of any national security threat. They say lawmakers ignored the years of work TikTok did with the federal government to come up with a solution to the concerns lawmakers had. In fact for the first time, TikTok disclosed the actual national security agreement they worked on with the Biden administration. An agreement, the Biden administration walked away from saying it wasn’t good enough. The brief argues this this law, “sets a dangerous precedent allowing the political branches to target a disfavored speech platform and force it to sell or be shut down. The constitution does not allow congress to single out one speech platform, make no findings, announce no justifications, ignore less restrictive alternatives, and discriminate based on speaker and content.”
Next month we will get a response brief from the US government which will give all its reasons why this law is constitutional and why the courts should leave it alone. Then we will hear oral arguments in the Washington DC Appeals court on September 16th.
Read all the briefs from TikTok here.
