Congress silenced free speech in TikTok law, platform tells federal court

TikTok and its parent company argued Thursday in federal court in the District of Columbia that a recently passed law forcing a nationwide ban or sale of the popular platform violates the First Amendment.

TikTok Inc., which operates a video-sharing service in the United States, and its parent company, ByteDance Ltd., founded by a Chinese national, filed tiny in the U.S. Court of Appeals for the D.C. Circuit law President Joe Biden signed an unprecedented restriction on the constitutional right to free speech in April.

“Never before has Congress expressly singled out and closed a specific speech forum,” the document says. “Never before has Congress silenced so much speech in one act. “

Maintaining such an “extraordinary restriction on speech” would require the court to “closely review” Congress’s actions, but Congress only presented a hypothetical national security argument to support the bill, the companies say.

“Congress gave the Court almost nothing to consider,” it continued. “Congress has not adopted any findings, so there is no way to know why majorities in the House and Senate decided to ban TikTok.”

TikTok is suing to have the modern app blocked under U.S. law if it is not sold

Many individual lawmakers who supported the bill raised national security concerns, saying ByteDance’s relationship with the Chinese government means Communist Party leaders in the country could demand access to TikTok users’ private data.

They also said the platform, which the company says has 170 million U.S. users, could be used to spread propaganda.

But following U.S. Supreme Court precedent, labeling speech as foreign propaganda does not allow the government to overlook First Amendment protections, TikTok said in its briefing.

Speculating about how the app “may” or “could” be used, rather than specific examples of misconduct, does not raise the bar for restricting speech, the companies added.

“National security claims do not override the Constitution,” the companies wrote Thursday.

Reply to legislators

The report said Congress has not provided any official findings on the harm caused by TikTok, but several individual members expressed particular concerns about the type of speech found on the platform.

On Thursday, the companies said these specific complaints strengthened the argument that TikTok is denied free speech protections.

The document quotes several statements from lawmakers:

  • According to the platform’s algorithm, Sen. Mitt Romney, a Utah Republican, Republican Raja Krishnamoorthi, an Illinois Democrat, a member of the House Select Committee on China, and former Republican Mike Gallagher, a Wisconsin Republican who chaired the panel, fed overwhelmingly pro-Palestinian content on films favoring Israel.
  • Sen. Tom Cotton, an Arkansas Republican, said the platform “exposed children to harmful content.”
  • Sen. John Fetterman, a Democrat from Pennsylvania, said the modern law “will make TikTok safer for our children and national security.”
  • Republican Senator from Nebraska Pete Ricketts noted the popularity of the hashtag #StandwithKashmir, which protests the policies of India, China’s geopolitical rival.

“Lawmakers’ perception of the content displayed on TikTok was incorrect,” the companies said. “But justified or not, government policing of content differences violates the First Amendment.”

Oral arguments in September

Both houses of Congress passed the bill on bipartisan votes as part of a package that included aid for Israel and Ukraine. Biden signed the measure April 24.

TikTok has pledged to sue and filed a legal complaint last month.

Spokespeople for the Justice Department, which is headed by the named defendant in the case, Attorney General Merrick Garland, did not immediately respond to a request for comment

Tuesday’s brief expanded on the company’s arguments. The government’s response is scheduled for July 26, and oral arguments are scheduled for September 16.

TikTok says a divestment is unfeasible

TikTok and ByteDance said Thursday that a provision in the bill that allows them to avoid a ban by divesting the service to a company unrelated to China is unenforceable, especially within the nine-month deadline required by law.

The companies say such a move would be technically sophisticated and require years of engineering. It would also isolate the US user base from the rest of the world, limiting advertising revenue.

Even if it were technically or businessally feasible, selling the platform would likely be rejected by the Chinese government, which has the power to block exports of technology developed in the country, the companies say.

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