TikTok Challenges Ban, Cites Fifth Amendment's Due Process Clause

Ground 3: Violation of Equal Protection

104. The Act also violates Petitioners’ rights under the equal protection component of the Fifth Amendment’s Due Process Clause because it singles Petitioners out for adverse treatment without any reason for doing so.

105. First, the Act deems any application offered by Petitioners to be a “foreign adversary controlled application” without notice or a presidential determination. Sec. 2(g)(3)(A). By contrast, applications offered by other companies “controlled by a foreign adversary” are deemed to be “foreign adversary controlled applications” only after notice and a presidential determination that those companies present “significant threat[s]” to U.S. national security, a determination that must be supported by evidence submitted to Congress. Sec. 2(g)(2)(B); see supra ¶ 34(d).

106. That distinction imposes a dramatically heavier burden on Petitioners’ free speech rights without any justification. The Act precludes the government from burdening the speech rights of any speakers other than Petitioners unless and until the President issues a public report on the specific national security concerns animating the President’s decision, provides support for that decision, and describes the assets requiring divestiture. Those protections ensure that the President must, at the very least, provide a detailed national security justification for his or her actions before burdening other speakers’ speech — a justification that then will provide the basis for judicial review. The Act imposes none of those requirements as a precondition for burdening Petitioners’ speech — it levies that burden by unexplained legislative fiat.

107. Second, the Act denies Petitioners the exemption available to any other company that is purportedly “controlled by a foreign adversary.” As noted, any application Petitioners offer is ipso facto deemed a “foreign adversary controlled application.” By contrast, other companies “controlled by a foreign adversary” are exempt from the Act’s definition of a “covered company,” and thus from the Act’s requirements, so long as they offer at least one application with the “primary purpose” of “allow[ing] users to post product reviews, business reviews, or travel information and reviews.” Sec. 2(g)(2)(B).

108. There is no conceivable reason for treating Petitioners differently than all other similarly situated companies. Even if Congress had valid interests in protecting U.S. users’ data and controlling what content may be disseminated through global platforms that would be advanced through the Act, there is no reason why those concerns would support a ban on Petitioners’ platforms without corresponding bans on other platforms. Nor is there any rational reason why Congress would ban Petitioners’ platforms while allowing any other company “controlled by a foreign adversary” — regardless of the national security threat posed by that company — to sidestep the Act’s reach by simply offering an application that “allows users to post product reviews, business reviews, or travel information and reviews,” but changing nothing else about the company’s operations, ownership structure, or other applications.

109. By treating Petitioners differently from others similarly situated, the Act denies Petitioners the equal protection of the law.