TikTok, 8 Creators: D.C. Circuit Should Permanently Block Federal TikTok Ban

Since TikTok is a “wellspring of free expression,” the First Amendment “safeguards the right of Americans to speak and associate using the platform,” yet Congress “has singled out the content on TikTok for elimination,” a separate brief (docket 24-1130) from eight TikTok creators, also challenging the federal ban, said Thursday.

Never before has Congress “silenced so much speech in a single act,” the TikTok/ByteDance brief said. The First Amendment requires the D.C. Circuit “to examine such an extraordinary speech restriction with the utmost care and most exacting scrutiny,” it added. Yet Congress gave the D.C. Circuit “almost nothing to review,” it said: “Congress enacted no findings, so there is no way to know why majorities of the House and Senate decided to ban TikTok.”

There’s no indication that Congress even considered TikTok’s “exhaustive, multi-year efforts” addressing the government’s concerns that Chinese subsidiaries of ByteDance support the TikTok platform, the TikTok brief said. In particular, Congress said nothing about the “less restrictive alternatives” to a ban, including the 90-page national security agreement that TikTok and ByteDance negotiated with the government, it said. That agreement “offers multi-layered safeguards and enforcement mechanisms,” it argued.

Congress provided no justification for banning TikTok “by fiat,” the brief said. Yet it created “substantive and procedural protections, as well as unexplained exclusions, for all other companies alleged to pose the same risks,” it said.

Without findings, the D.C. Circuit “is left with statements” of Congress members and a single committee report, the brief said. Many of those members criticized “cherry-picked” TikTok content, “merely reinforcing” the ban’s unconstitutionality, it said. The report invoked national security, “pointing to the speculative possibility that TikTok could be misused in the future.”

But a claim of national security doesn’t “override” the Constitution, the brief argued. The ban can’t survive First Amendment scrutiny “at any step of the analysis,” it said. It advances no compelling interests, isn’t tailored, and “disregards less restrictive alternatives,” the brief said. The ban also is unconstitutional “because of its unique, two-tiered system of speech regulation, which singles out TikTok for disfavor,” it said. That flaw is sufficient to “invalidate” the ban, “irrespective of any purported national security justification.”

The government will deny that Congress banned TikTok, claiming that ByteDance can execute a “qualified divestiture” to avert the ban. But such a divestiture isn’t possible “technologically, commercially, or legally,” especially within the ban’s “arbitrary 270-day timeline,” it said. TikTok and ByteDance have repeatedly explained why this type of divestiture wouldn’t work, and Congress “apparently never even considered whether it was possible,” the brief alleged.

Even if divestiture were feasible, TikTok in the U.S. would become “a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user,” the brief said: “It also would become an island, preventing Americans from exchanging views with the global TikTok community. Such a speaker- and content-based divestiture requirement cannot survive scrutiny.”

The TikTok ban also is a “radical departure” from the American tradition of “championing” an open internet, the brief said. It also 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 doesn’t 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,” it said. The ban “is unconstitutional and must be enjoined,” it said.

The eight creators’ opening brief argued TikTok “stands apart” from other social media apps, “presenting a unique form of expression that has a different look, feel, and sound.” It also offers “a distinct editorial and publication system, which in turn provides access to a wide audience.”

The D.C. Circuit should “permanently enjoin” the TikTok ban’s enforcement, the creators’ brief added. American constitutional tradition “leaves no room” for the government to stop TikTok creators “from expressing their ideas through the editor and publisher they have chosen,” it said. The government “could no more prohibit” freelance journalists from publishing in magazines of their choice, or forbid an actor from working with a particular director, it said.

Even if some governmental interest “could theoretically overcome” the ban’s First Amendment implications, “the legislative record here would still fall far short,” the creators’ brief said. Some lawmakers purportedly fear that TikTok could disseminate foreign propaganda and influence the American public through the information shared and consumed on the platform, it said: “But the content or viewpoint of speech provides no justification for suppressing it.”

In many countries, the right to free speech “is subject to the whims of politicians,” the creators’ brief noted. Not in the U.S., it said, where the First Amendment “stands as a bulwark against governmental efforts to censor speech.” The D.C. Circuit should enjoin the ban’s enforcement, it said.