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‘An extraordinary speech restriction’: In legal filings, TikTok blasts potential US ban

Alongside eight content creators, the social media app is set to argue against the ban before a three-judge panel of the D.C. Circuit on Sept. 16.

WASHINGTON (CN) — In a legal brief filed Thursday, TikTok blasted as unprecedented and unconstitutional efforts by lawmakers to force the social-media app to either divest from Chinese parent company ByteDance or face a U.S. ban.

The filling comes just weeks after both the social media company and a group of TikTok creators sued U.S. Attorney General Merrick Garland in the U.S. Circuit Court for the District of Columbia, challenging the Protecting Americans from Foreign Adversary Controlled Application Act, as the TikTok restrictions are known.

Lawmakers slipped the act into a sweeping foreign-aid package that also included around $95 billion in aid for Ukraine, Israel and Taiwan. President Joe Biden signed it into law on April 24.

The law requires TikTok to divest itself from ByteDance within nine months. If it doesn't, the federal government will block cloud service providers and app stores from listing it in the United States.

Lawmakers argued the legislation is necessary because the app may pose a national security threat due to its Chinese ownership. 

TikTok argued that the mere invocation of national security, along with the “speculative possibility” that TikTok could be misused in the future, cannot override the Constitution.

“This law is a radical departure from this country’s tradition of championing an open Internet, and sets a dangerous precedent allowing the political branches to target a disfavored speech platform and force it to sell or be shut down,” TikTok said.

Lawmakers, TikTok argued, made very little effort to ensure “such an extraordinary speech restriction” was created with care and scrutiny, leaving the company with little to no information on why lawmakers opted for the ban.

TikTok pointed to its $2 billion Project Texas, which the company said is intended to safeguard U.S. user data and the integrity of the platform against foreign government influence. It also noted the commitments it had made in 90-page draft National Security Agreement developed with the Committee on Foreign Investment. As part of that agreement, TikTok agreed to a “shutdown” option if the company violated certain obligations.

As the record stands, there is no indication Congress ever considered those “exhaustive, multi-year efforts," TikTok argued. Instead, the company said the court only had statements by individual members of Congress and a single committee report, which the company argued criticize cherry-picked content on the application.

The legislation, TikTok said, cannot survive First Amendment scrutiny because it advances no compelling government interests. By singling out TikTok and its users, it also creates a “two-tiered” system for speech regulation, the company argued.

The social media company warned that the 270-day timeline for divestiture all but guarantees that the application will be banned because such a feat would be technologically, commercially and legally impossible, the company argued. TikTok also said Congress never considered whether a divestiture was possible within such a short time frame. 

Even if TikTok were to divest itself in time, it would reduce the application to a “shell of its former self,” leaving it without the algorithm that creates each user’s personalized feed, the company said. In addition, American users would be constrained to what the company called a digital island, unable to view or share videos outside of the U.S.

“Never before has Congress singled out and shut down a specific speech forum,” TikTok wrote in its brief. “Never before has Congress silenced so much speech in a single act.” 

A group of eight TikTok content creators in May also sued Garland over the potential ban. On Monday, that suit was consolidated with TikTok's.

The creators provide a wide range of content on the platform. Among them are Brian Firebaugh, a first-generation rancher from Hubbard, Texas who posts about agricultural issues, and Steven King, a creator from Buckeye, Arizona who posts about his life, LGBTQ pride and sober living.

Echoing TikTok's legal arguments, the creators highlighted personal harms they said they would suffer if TikTok is banned or disconnected from the outside world. 

“Just as the First Amendment protects a freelance journalist’s choice to publish her article with a magazine she chooses, or a musical artist’s ability to record in the studio he chooses, it also protects petitioners’ desire to express themselves with their chosen editor and publisher: TikTok,” the creators argued.

Oral arguments in the case are scheduled for Sept. 16 before a three-judge panel of the D.C. circuit. Those jurists are U.S. Circuit Judges Robert Wilkins, Michelle Childs and Florence Pan — a Barack Obama appointee and two Biden appointees, respectively.

Follow @Ryan_Knappy
Categories / First Amendment, Politics, Technology

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