TikTok Dances Into Court, Slams Ban As Unconstitutional
While I’m still waiting for TikTok to release its 30-second long dancing interpretation of why the TikTok ban is unconstitutional, at least it’s now going to court to make the argument for real. It took maybe a week or so longer than expected, but TikTok and ByteDance have now officially filed their lawsuit challenging the constitutionality of the TikTok ban law.
This lawsuit was always going to happen, and now it’s here. The complaint does not mince words:
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.
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.
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.
I’ve pointed out that I agree that this bill is unconstitutional. In talking to various legal experts about it, I’d say that the feeling is not universal. Around 70% or so of the legal experts I’ve spoken to think it’s unconstitutional, leaving some who believe that there is constitutional justification for this.
The petition points out that this law is inconsistent with the First Amendment (as an attack on free speech) and the Fifth Amendment (over due process and principles of fairness), and the law is a Bill of Attainder targeting one company by name. The petition argues that there were much less aggressive ways of achieving whatever policy goal the US government is seeking without banning the app outright (or forcing divestiture). Specifically, TikTok points repeatedly to the years-long negotiations process the company has had with CFIUS (the Committee on Foreign Investment in the United States) to make it clear that TikTok was not a threat, including making a variety of promises and putting in place ways to check that the company was living up to those promises.
The petition also points out that there have been no legislative findings regarding TikTok, just random conjecture.
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.
It also points out that it had previously agreed to “Project Texas” the last time the government tried to ban the service and has made certain “commitments” to CFIUS regarding its use of data, including agreeing that CFIUS can shut down the service if TikTok is found to have violated such agreements (I don’t recall hearing about this particular detail before).
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.
Unsurprisingly, the lawsuit points out that President Trump’s attempt to ban TikTok failed badly, as the court found no legitimate basis for the ban.
The complaint details more of the CFIUS negotiations, which had previously been mostly behind closed doors. It suggests that the company was willing to work with the US government to prove it wasn’t doing anything problematic, but the US government effectively stopped talking.
Between January 2021 and August 2022, Petitioners and CFIUS engaged in an intensive, fact-based process to develop a National Security Agreement that would resolve the U.S. government’s concerns about whether Chinese authorities might be able to access U.S. user data or manipulate content on TikTok, as well as resolve the pending CFIUS dispute. During that time, Petitioners and government officials communicated regularly, often several times a week — including several in-person meetings — about the government’s concerns and potential solutions. The result was an approximately 90-page draft National Security Agreement with detailed annexes embodying a comprehensive solution addressing the government’s national security concerns. Notably, the draft National Security Agreement provided that all protected U.S. user data (as defined in the agreement) would be stored in the cloud environment of a U.S.-government-approved partner, Oracle Corporation, which would also review and vet the TikTok source code.
From Petitioners’ perspective, all indications were that they were nearing a final agreement. After August 2022, however, CFIUS without explanation stopped engaging with Petitioners in meaningful discussions about the National Security Agreement. Petitioners repeatedly asked why discussions had ended and how they might be restarted, but they did not receive a substantive response. In March 2023, without providing any justification for why the draft National Security Agreement was inadequate, CFIUS insisted that ByteDance would be required to divest the U.S. TikTok business.
As for the actual grounds on which the petition is based, it obviously starts with the First Amendment:
The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const., amend. I.
By banning all online platforms and software applications offered by “TikTok” and all ByteDance subsidiaries, Congress has made a law curtailing massive amounts of protected speech. Unlike broadcast television and radio stations, which require government licenses to operate because they use the public airwaves, the government cannot, consistent with the First Amendment, dictate the ownership of newspapers, websites, online platforms, and other privately created speech forums.
Indeed, in the past, Congress has recognized the importance of protecting First Amendment rights, even when regulating in the interest of national security. For example, Congress repeatedly amended IEEPA — which grants the President broad authority to address national emergencies that pose “unusual and extraordinary threat[s]” to the country — to expand protections for constitutionally protected materials. 50 U.S.C. §§ 1701–02. Accordingly, under IEEPA, the President does not have the authority to even indirectly regulate “personal communication” or the importation or exportation “of any information or informational materials,” id. § 1702(b)(1), (3) — limitations that are necessary “to prevent the statute from running afoul of the First Amendment,” Amirnazmi, 645 F.3d at 585. Yet Congress has attempted to sidestep these statutory protections aimed at protecting Americans’ constitutional rights, preferring instead to simply enact a new statute that tries to avoid the constitutional limitations on the government’s existing statutory authority. Those statutory protections were evidently seen as an impediment to Congress’s goal of banning TikTok, so the Act dispensed with them.
As TikTok points out, the ban hurts the First Amendment rights of both the Americans who use the platform (though it’s not as clear that TikTok can represent them) and TikTok itself. This argument pulls heavily from the Texas/Florida NetChoice cases that the Supreme Court is still considering, but TikTok calls out the US government’s briefing in that case:
First, Petitioner TikTok Inc. has a First Amendment interest in its editorial and publishing activities on TikTok. See Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995). TikTok “is more than a passive receptacle or conduit for news, comment, and advertising” of others; TikTok Inc.’s “choice of material” to recommend or forbid “constitute[s] the exercise of editorial control and judgment” that is protected by the First Amendment. Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also Alario v. Knudsen, — F. Supp. 3d —, 2023 WL 8270811, at *6 (D. Mont. Nov. 30, 2023) (recognizing TikTok Inc.’s First Amendment editorial rights).
As the government itself has acknowledged, “[w]hen [social media] platforms decide which third-party content to present and how to present it, they engage in expressive activity protected by the First Amendment because they are creating expressive compilations of speech.” Br. for United States as Amicus Curiae at 12–13, Moody v. NetChoice LLC, No. 22-277 (U.S.), 2023 WL 8600432; see also id. at 18– 19, 25–26.
Second, TikTok Inc. is among the speakers whose expression the Act prohibits. TikTok Inc. uses the TikTok platform to create and share its own content about issues and current events, including, for example, its support for small businesses, Earth Day, and literacy and education.18 When TikTok Inc. does so, it is engaging in core speech protected by the First Amendment. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011); NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1210 (11th Cir. 2022), cert. granted, 144 S. Ct. 478 (2023). The Act precludes TikTok Inc. from expressing itself over that platform.
Then, there is a long (but quite readable!) analysis of why this case requires strict scrutiny and why the law fails strict scrutiny (not narrowly tailored, there are less rights-limiting means to achieve whatever policy goal, etc.). But it also points out that even if the court goes with intermediate scrutiny, the law would still fail for not being “narrowly tailored.”
From there, TikTok makes the Bill of Attainder arguments. This one had appealed to me early on, as it seems pretty clear that the bill qualifies. It literally names TikTok. Still, a bunch of lawyers have pointed out that the courts have, in the past, made it pretty hard to win Bill of Attainder cases. This is because they require not just that it be narrowly targeted at a single party, but that it also involve “punishment,” which the courts often view very narrowly.
That said, there’s no reason not to raise this argument, so as not to cut it off as a possibility. Anyone looking at a common sense view of the law has to admit that it’s a pretty clear Bill of Attainder.
Article I of the U.S. Constitution prohibits Congress from passing any bill of attainder. U.S. Const. art. I § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). A bill of attainder is “legislative punishment, of any form or severity, of specifically designated persons or groups.” United States v. Brown, 381 U.S. 437, 447 (1965). The protection against bills of attainder is “an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.”…
By singling out Petitioners for legislative punishment, the Act is an unconstitutional bill of attainder.
The Act inflicts “pains and penalties” that historically have been associated with bills of attainder. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474 (1977). Historically, common “pains and penalties” included “punitive confiscation of property by the sovereign” and “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,” among others. Id. As described above, the Act confiscates Petitioners’ U.S. businesses by forcing ByteDance to shutter them within 270 days or sell on terms that are not commercially, technologically, or legally feasible. See supra ¶¶ 26‒29. For the same reason, the Act bars Petitioners from operating in their chosen line of business.
After that, there’s an equal protection/due process claim:
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.
Finally, there’s a “Takings Clause” argument which strikes me as the weakest (but, then again, it’s put last and not all that well developed):
The Takings Clause provides that “private property” shall not be “taken for public use, without just compensation.” U.S. Const. amend. V, cl. 5. The Act does just that by shutting down ByteDance’s U.S. businesses or, to the extent any qualified divestiture alternative is even feasible (it is not), compelling ByteDance to sell those businesses under fire-sale circumstances that guarantee inadequate compensation.
All in all, it’s a well-argued brief, making basically all of the arguments everyone was expecting to be made here. The law required this petition be brought straight to the DC Circuit appeals court, so we get to skip the fun of a random judge at a district court making some ridiculous ruling. Instead, we’ll see what a panel of appeals court judges think. No matter what happens, this case is going to the Supreme Court.
I’ve seen some people saying that no argument will work because the conservative majority on the court will ignore anything in favor of “China bad!” but I’m not convinced of that. From what we’ve seen in recent cases, there are still at least some Justices on the court who seem to believe in a principled First Amendment take. We’ll just have to see if there are enough of them.