TikTok supporters take legal action to save the platform

Who has a stronger case that the TikTok ban is unconstitutional? TikTok itself… or its users? We may find out, as both are trying.

by Mike Masnick of Tech Dirt

Last week, TikTok officially filed a petition to challenge the Constitutionality of the TikTok ban law. I’ve heard a few people say that they don’t believe TikTok has that strong of a case (I, personally, disagree), but that TikTok’s users might have a stronger argument.

Well, they’re going to try, as a group of TikTok users have now filed a similar petition in the DC Circuit focused solely on the First Amendment issue (the only real issue that impacts them). You may recall that some Montana-based TikTok users filed a similar lawsuit in that state to contest the Montana ban, which succeeded. This new case on behalf of users is filed using the same law firm, Davis Wright Tremaine, and some of the same lawyers as the case in Montana.

In Montana, the two cases (TikTok itself and its users) were effectively merged into a single case before one judge. It’s unclear if the same thing will happen here. As this case claims, for users of TikTok, the US government is interfering with their own expressive rights by effectively banning the space in which they prefer to publish their content:

Petitioners are among the 170 million Americans who create, publish, view, interact with, and share videos on TikTok. They rely on TikTok to express themselves, learn, advocate for causes, share opinions, create communities, and even make a living. Although they come from different places, professions, walks of life, and political persuasions, they are united in their view that TikTok provides them a unique and irreplaceable means to express themselves and form community. They bring this lawsuit to preserve their First Amendment rights and the rights of countless others, which are threatened by the Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50 (Apr. 24, 2024).

The Act bans TikTok unless its owners divest the platform in a manner that is infeasible, as the company has stated and as the publicly available record confirms. The Act thus promises to shutter a discrete medium of communication that has become part of American life, prohibiting Petitioners from creating and disseminating expressive material with their chosen editor and publisher—and from receiving such material from others.

This extraordinary restraint on speech violates the First Amendment. In supporting the Act, lawmakers claimed that TikTok “manipulate[s]” American minds and disseminates “propaganda” that would “use our country’s free marketplace to undermine our love for liberty.” But it is the Act that undermines the nation’s founding principles and free marketplace of ideas. The First Amendment to our Constitution precludes Congress from censoring speech because of its content, viewpoints, editorial practices, or identity of speakers or publishers.

I’ve seen some push back on this, claiming that there is no “right” to access TikTok, and that the users are still free to post their content elsewhere. But that makes no sense. The government can’t shut down a newspaper publisher and say that it’s okay because Americans can get their news from elsewhere.

The case details how each of the eight petitioners use TikTok and would be harmed by the site being blocked. The petitioners have a wide variety of backgrounds and experiences, and you can tell that some were chosen to appeal to certain, let’s say… constituencies… on the Supreme Court. I mean…

Petitioner Christopher Townsend lives with his family in Philadelphia, Mississippi. He served in the U.S. Air Force for six years as a cryptologic language analyst. Townsend is now a well-known hip hop artist and founded an organization dedicated to promoting biblical literacy by quizzing individuals on their knowledge of stories from the Bible. Townsend shares videos of these light-hearted and informative biblical quizzes with his 2.5 million TikTok followers. He also uses the app to share his music, which addresses topics such as his religion, patriotism, and political views. Because of the Act, Townsend faces losing the platform on which he is able to express his beliefs and share his spirituality and music with the world.

Petitioner Steven King lives in Buckeye, Arizona. King has used TikTok since 2019 to create humorous content about his daily life and spread awareness about LGBTQ pride, self-confidence, and sober living. King also derives immense satisfaction and enjoyment from using his ingenuity to create content on the app for his 6.8 million followers—and seeing this content reach the kind of audience that finds it most compelling. His content has deeply resonated with the public, some of whom ask King questions on TikTok about his experience coming out as gay in Arizona and his 28-year loving relationship with his husband. This community—which King has been unable to find on other social media and entertainment platforms—means the world to him.

Something for everyone!

The complaint also highlights how some of the other alternatives out there just aren’t equivalent for the petitioners:

In fact, all of the Petitioners have tried using other social media apps, with far less success. For example, King has 6.8 million followers on TikTok, but only about 137,000 on Facebook. Sexton has 2.2 million followers on TikTok, but only about 44,000 on Instagram. Townsend has 2.5 million followers on TikTok, but only about 298,000 on Instagram. Firebaugh has more than 430,000 followers on TikTok, but only about 22,000 on Instagram. Martin has one million followers on TikTok, but only about 10,000 on Instagram. Spann has over 760,000 followers on TikTok, but less than 10,000 on Instagram. Tran’s company has 138,000 followers on TikTok, but less than 2,000 followers on Facebook. And Cadet has 126,000 followers on TikTok, but less than 7,000 on Instagram.

As for the actual First Amendment claim, it’s pretty straightforward:

The Act regulates “speech” under the First Amendment by singling out and effectively banning a medium of communication—TikTok—that Petitioners (and other Americans) use to engage in protected expression, prohibiting them from sending and receiving information they are entitled to communicate.

The Act erects an unconstitutional prior restraint by banning protected speech on TikTok and by empowering the President to pre-approve who may publish and edit TikTok’s service and, in turn, the speech Petitioners wish to disseminate on that platform.

The Act regulates on a content-, speaker-, and viewpoint-basis. The law is content- and speaker-based because it expressly bans TikTok but exempts other companies based on the type of content those companies’ apps publish. The law is also content-, speaker-, and viewpoint-based because it prohibits operation of TikTok’s current content recommendation system by its current editors, preventing Petitioners from using their chosen editor and publisher to engage in protected communication. From the standpoint of the First Amendment, this restriction is no different from prohibiting American freelance writers from submitting articles to The Economist, or American musicians from disseminating songs through Spotify. The Act further regulates speech based on its viewpoint because it is motivated by a disfavored view of the ideas that are, or could be, expressed or promoted on TikTok.

Indeed, the petition makes clear that this isn’t even like most other challenges of laws where the test for strict scrutiny of regulating speech is a very high bar. Here, they claim the bar should be even higher than strict scrutiny.

The Act for all these reasons bears a heavy presumption of unconstitutionality—more stringent than even strict scrutiny—and fails even intermediate scrutiny. The government cannot ban a medium for communication because it believes that medium is used to transmit foreign “propaganda” or other protected content. Nor does the government have any actual, non-speculative evidence that banning TikTok in its current form enhances Americans’ data security, or that its ban is narrowly tailored to accomplish that objective. The fact that the Act is paired with other federal legislation restricting how data brokers may share and sell American user information to certain foreign entities underscores that the ban is not narrowly tailored.

This is the key point I keep raising when people insist that the TikTok ban is fine. There are always two arguments, and neither make much sense. If the concern is propaganda, too bad. The 1st Amendment protects propaganda. If the concern is data privacy/national security, well, then you have to show some actual evidence to support that claim (and also, maybe, pass a comprehensive privacy bill that applies to everyone instead?)

So neither is an acceptable justification.

The Act is unconstitutionally overbroad because it bans an entire medium of communication and all the speech communicated through that medium, even though, at the very least, the vast majority of that speech is protected and not otherwise subject to suppression.

Unless declared invalid and enjoined, the Act will unlawfully deprive Petitioners of their rights under the First Amendment, inflicting immediate and irreparable harm.

The argument here is simpler and more straightforward than the argument that TikTok itself is making, and is (not surprisingly) designed to cut to the heart of the matter before the court. I expect the DOJ will make all sorts of handwavy claims that the divestiture demand has no impact on speech and do as much to minimize the “ban” part for a failed divestiture.

Either way, we’re off to the races. Not just directly from TikTok, but from the service’s users as well. I hope they post the oral arguments to TikTok.

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