TikTok Fires Back at Congress, Calls U.S. Ban Unconstitutional by@legalpdf
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TikTok Fires Back at Congress, Calls U.S. Ban Unconstitutional

by Legal PDFMay 9th, 2024
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Congress passed the Protecting Americans From Foreign Adversary Controlled Applications Act, targeting TikTok for a shutdown due to national security concerns. TikTok argues the ban violates its First Amendment rights and that Congress failed to consider less restrictive alternatives, making the Act unconstitutional.
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Tiktok Inc., and ByteDance LTD., v. Merrick B. Garland Update Court Filing, retrieved on May 7, 2024, is part of HackerNoon’s Legal PDF Series. You can jump to any part in this filing here. This part is 1 of 11.

1. Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet. For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.

2. That law — the Protecting Americans From Foreign Adversary Controlled Applications Act (the “Act”) — is unconstitutional. Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership. According to its sponsors, the Act responds to TikTok’s ultimate ownership by ByteDance Ltd., a company with Chinese subsidiaries whose employees support various ByteDance businesses, including TikTok. They claim that the Act is not a ban because it offers ByteDance a choice: divest TikTok’s U.S. business or be shut down.[1]

3. But in reality, there is no choice. The “qualified divestiture” demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act. Petitioners have repeatedly explained this to the U.S. government, and sponsors of the Act were aware that divestment is not possible. There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.

4. Of course, even if a “qualified divestiture” were feasible, the Act would still be an extraordinary and unconstitutional assertion of power. If upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created. If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down. And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content — an outcome fundamentally at odds with the Constitution’s commitment to both free speech and individual liberty.

5. There are good reasons why Congress has never before enacted a law like this. Consistent with the First Amendment’s guarantee of freedom of expression, the United States has long championed a free and open Internet — and the Supreme Court has repeatedly recognized that speech “conveyed over the Internet” fully qualifies for “the First Amendment’s protections.” 303 Creative LLC v. Elenis, 600 U.S. 570, 587 (2023). And consistent with the fundamental principles of fairness and equal treatment rooted in the Bill of Attainder Clause and the Fifth Amendment, Congress has never before crafted a two-tiered speech regime with one set of rules for one named platform, and another set of rules for everyone else

6. In dramatic contrast with past enactments that sought to regulate constitutionally protected activity, Congress enacted these extreme measures without a single legislative finding. The Act does not articulate any threat posed by TikTok nor explain why TikTok should be excluded from evaluation under the standards Congress concurrently imposed on every other platform. Even the statements by individual Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence — even though the platform has operated prominently in the United States since it was first launched in 2017. Those speculative concerns fall far short of what is required when First Amendment rights are at stake.

7. Nor is there any indication that Congress considered any number of less restrictive alternatives, such as those that Petitioners developed with the Executive Branch after government agencies began evaluating the security of U.S. user data and the risk of foreign government influence over the platform’s content as far back as 2019. While such concerns were never substantiated, Petitioners nevertheless worked with the government for four years on a voluntary basis to develop a framework to address the government’s concerns.

8. As part of this engagement, Petitioners have voluntarily invested more than $2 billion to build a system of technological and governance protections — sometimes referred to as “Project Texas” — to help safeguard U.S. user data and the integrity of the U.S. TikTok platform against foreign government influence. Petitioners have also made extraordinary, additional commitments in a 90-page draft National Security Agreement developed through negotiations with the Committee on Foreign Investment in the United States (“CFIUS”), including agreeing to a “shut-down option” that would give the government the authority to suspend TikTok in the United States if Petitioners violate certain obligations under the agreement.

9. Congress tossed this tailored agreement aside, in favor of the politically expedient and punitive approach of targeting for disfavor one publisher and speaker (TikTok Inc.), one speech forum (TikTok), and that forum’s ultimate owner (ByteDance Ltd.). Through the Act’s two-tiered structure, Congress consciously eschewed responsible industry-wide regulation and betrayed its punitive and discriminatory purpose. Congress provided every other company — however serious a threat to national security it might pose — paths to avoiding a ban, excluding only TikTok Inc. and ByteDance Ltd. Indeed, for any other company’s application to be banned, Congress mandated notice and a “public report” describing “the specific national security” concern, accompanied by supporting classified evidence. For Petitioners only, however, there is no statement of reasons and no supporting evidence, with any discussion of the justifications for a ban occurring only behind closed doors.

10. Congress must abide by the dictates of the Constitution even when it claims to be protecting against national security risks: “against [those] dangers . . . as against others, the principle of the right to free speech is always the same.” Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting). Congress failed to do so here, and the Act should be enjoined.

Jurisdictional Statement

11. Pursuant to Sections 3(a) and 3(b) of the Act, H.R. 815, div. H, 118th Cong., Pub. L. No. 118-50 (April 24, 2024), this Court has original and exclusive jurisdiction over this challenge to the constitutionality of the Act.[2]

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[1] References to “TikTok Inc.” are to the specific U.S. corporate entity that is a Petitioner in this lawsuit and publishes the TikTok platform in the United States. References to “TikTok” are to the online platform, which includes both the TikTok mobile application and web browser experience. References to “ByteDance Ltd.” are to the specific Cayman Islandsincorporated holding company that is identified in the Act and is a Petitioner in this lawsuit. References to “ByteDance” are to the ByteDance group, inclusive of ByteDance Ltd. and relevant operating subsidiaries. TikTok Inc. and ByteDance. Ltd. are together referred to as “Petitioners.

[2] A copy of the Act is attached to this Petition as Exhibit A. Because this Petition does not involve a challenge to any agency action, it is not governed by Federal Rule of Appellate Procedure 15(a). Petitioners intend to file a separate motion regarding the procedures governing this original proceeding. Petitioners summarize the pertinent facts and claims below to facilitate this Court’s review consistent with the practice of a case-initiating pleading in a court of original jurisdiction, but reserve their rights to present additional facts and arguments in due course.