US TikTok Ban ‘Fundamentally at Odds’ With Free Speech, Says TikTok Petition for Review

With the federal ban on TikTok, Congress has taken the "unprecedented" step of enacting a law that “bars every American from participating in a unique online community with more than 1 billion people worldwide,” TikTok and ByteDance said Tuesday in their petition for review (docket 24-1113) in the U.S. Appeals Court for the D.C. Circuit to invalidate the ban.

The petition seeks a declaratory judgment that the law violates the Constitution. It also seeks an order enjoining U.S. Attorney General Merrick Garland from enforcing it.

Under the law, which President Joe Biden signed April 24 under the Protecting Americans From Foreign Adversary Controlled Applications Act, ByteDance must sell TikTok by mid-January for the platform to continue operating in the U.S.

TikTok and ByteDance challenge the ban on four constitutional grounds, said the petition. They allege it: (1) violates the First Amendment; (2) is an unconstitutional bill of attainder; (3) violates their rights under the equal protection component of the Fifth Amendment’s due process clause because it singles them out "for adverse treatment without any reason for doing so"; and (4) "effects an unlawful taking of private property without just compensation," in violation of the Fifth Amendment’s takings clause.

Banning TikTok is “so obviously unconstitutional” that even the ban’s sponsors recognized that reality, the petition said. They “have tried mightily” to depict the law not as a ban, but merely a regulation of TikTok’s ownership, it said. They claim that the law isn’t a ban because it offers ByteDance a choice -- divest TikTok’s U.S. business or close, it said.

But in reality, “there is no choice,” said the petition. The “qualified divestiture” demanded by the law to allow TikTok to continue operating in the U.S. “is simply not possible” -- not commercially, not technologically, not legally, and certainly not on the 270-day timeline required, it said.

TikTok and ByteDance “have repeatedly explained this to the U.S. government,” the petition said. The ban’s sponsors “were aware that divestment is not possible,” it said. There’s “no question” that there will be a forced shutdown of TikTok by Jan. 19, “silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere,” it said.

Even if a qualified divestiture were “feasible,” the ban “would still be an extraordinary and unconstitutional assertion of power,” said the petition. 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,” it said.

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,” said the petition. For TikTok, any such divestiture “would disconnect Americans from the rest of the global community on a platform devoted to shared content,” it said. That would be an outcome “fundamentally at odds with the Constitution’s commitment to both free speech and individual liberty,” it said.

In “dramatic contrast” with past enactments that sought to regulate constitutionally protected activity, Congress enacted these “extreme measures” against TikTok “without a single legislative finding,” the petition argues. The ban doesn’t 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,” it said.