Scholars’ Amicus Brief: TikTok Ban’s Unconstitutionality Not ‘a Close Case’

The law can’t justify “its extreme and indiscriminate restraint on free speech,” according to the brief from professors Milton Mueller and Hans Klein of the Georgia Institute of Technology’s School of Public Policy; Timothy Edgar of Brown University; and Susan Aaronson of George Washington University's Elliott School of International Affairs.

The scholars specialize in AI, cybersecurity, data governance, international public affairs, internet governance and national security, the brief said. The law will ban TikTok from the U.S. in mid-January if Chinese parent ByteDance doesn't sell the platform by year's end.

More than 170 million Americans use TikTok “to entertain, express themselves, advocate for various causes, or spread awareness,” the brief said. Despite the existence of “much less restrictive” remedies, the TikTok ban “will put an end to this public forum for speech, a forum that is especially vibrant among young people."

The lack of “hard evidence” or “careful analysis,” as the First Amendment requires, is “reason enough” to find the ban unconstitutional, the brief said. In addition, the ban lacks the support of an “adequate” congressional record, it said: “In fact, there is no congressional record, and no executive or agency findings were published.”

Moreover, the ban isn’t “tailored” to achieve the government’s national security interests, the brief argues. TikTok’s videos and content “offer a staggering variety of viewpoints and modes of expression.” Yet the law takes the “overbroad approach” of banning all speech on TikTok “indiscriminately.” All the while, the ban will have a “negligible effect” on national security because it won’t “reduce foreign access to sensitive information nor reduce influence operations.”

The ban disregards many “less restrictive alternatives,” including Project Texas, and it's “an unnecessarily drastic step considering those alternatives,” the brief said. Project Texas mandates creating an independent U.S.-based subsidiary, TikTok U.S. Data Security. It would house the TikTok teams that access U.S. user data, it said.

Under Project Texas, Oracle Cloud would host the TikTok platform, including its algorithm and content moderation functions, in the U.S., the brief said. The Committee on Foreign Investments in the U.S. would monitor TikTok’s compliance with Project Texas and have a "shutdown option," it said. These and other parts of Project Texas “mitigate the national security risks set out by Congress.”

The ban also would “seriously undermine” U.S. foreign policy interests, the professors argue. TikTok may be the first major non-U.S.-based social media platform to become popular in the U.S., “but it won’t be the last.” Banning every non-U.S. platform isn’t “a viable or sustainable solution,” nor is it consistent with longstanding U.S. foreign policy goals, the brief said.