TikTok sues feds over ‘obviously unconstitutional’ potential ban

WASHINGTON (CN) — TikTok filed a lawsuit Tuesday in a bid to block recently passed legislation that would force the application to be divested from Chinese parent-company ByteDance or be banned in the U.S.

In the suit, filed in the U.S. Court of Appeals for the District of Columbia against U.S. Attorney General Merrick Garland, TikTok claims the Protecting Americans from Foreign Adversary Controlled Applications Act is “obviously unconstitutional.” 

“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 social media platform says in its complaint. 

Lawmakers slipped the act into a sweeping foreign aid package — which unlocked around $95 billion in aid for Ukraine, Israel and Taiwan — which was signed into law by President Joe Biden on April 24. The law requires TikTok to divest itself from ByteDance within nine months or the federal government will block cloud service providers and app stores from listing it in the U.S. 

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

TikTok claims the law’s sponsors in Congress are aware of the law’s unconstitutionality, which is why they have characterized it as a mere “regulation of TikTok’s ownership” rather than a ban. The company notes that lawmakers have said ByteDance has a choice: either divest TikTok’s U.S. business or be shut down.

“But in reality, there is no choice,” TikTok said. “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.” 

TikTok warns that so long as the act stands, TikTok will shut down in the U.S. on Jan. 19, 2025. 

If Congress can use national security concerns to circumvent the First Amendment, TikTok says, then the social media company will only be the first casualty: the government could then order the publisher of a newspaper or website to sell or be shut down. 

The law is inconsistent with the nation’s support for a free and open internet, TikTok claims, specifically citing the Supreme Court’s ruling in 303 Creative LLC v. Elenis, and the high court’s recognition that speech on the internet should be protected by the First Amendment. 

In the 2023 case, the conservative majority ruled a Christian web designer could not be compelled to serve same-sex couples, finding that the First Amendment protects the rights of individuals to speak their minds.

TikTok claims that unlike previous attempts limiting constitutionally protected activity, Congress moved forward without a single legislative finding. The company points to statements made by members of Congress and a congressional committee report which merely cite “the hypothetical possibility” that the app could be missed in the future. 

In the weeks following the law’s passage, some lawmakers have hinted that the ban is connected to growing support for Palestine among young people. 

In a May 3 forum with the McCain Institute in Arizona, Republican Senator Mitt Romney of Utah and Secretary of State Antony Blinken discussed the potential ban and its ties to the ongoing Israel-Hamas conflict. 

Romney asked Blinken why the U.S. and Israel seemed to “ineffective” at communicating justifications for the war in Gaza. Blinken pointed to social media and a lack of context.

“Some wonder why there was such overwhelming support for us to shut down potentially TikTok,” Romney replied. “If you look at the posting on TikTok and the number of mentions of Palestinians, relative to other social media sites — its overwhelmingly so among TikTok broadcasts.” 

TikTok claims Congress failed to consider potential, less restrictive alternatives and ignored the company’s $2 billion effort, known as “Project Texas,” to safeguard U.S. user data and the integrity of the platform against foreign government influence. 

Further, TikTok had made additional commitments in a 90-page draft National Security Agreement developed with the Committee on Foreign Investment in the United States, which included agreeing to a “shutdown” option if TikTok violated certain obligations under the agreement. 

The company wants the D.C. Circuit to declare the act is unconstitutional and block Garland from enforcing it. 

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