TikTok Users Challenge Law Banning the App

A group of eight TikTok users sued the U.S. on May 14, claiming a recent law that could ban the platform violates the content creators' First Amendment rights.

The suit comes a week after TikTok filed its own suit against the law, which requires the app's owner, Chinese tech firm ByteDance, to sell the app (see 2405070049). Acknowledging both lawsuits, the U.S. District Court for the District of Columbia consolidated the cases in a May 15 order. The court said a statement of issues to be raised and docketing statement form are due June 14 in the consolidated action.

TikTok, in its petition, argued that the law violates the First Amendment's freedom of speech protection and the Fifth Amendment's due process protections. The law also takes private property without just compensation, TikTok said, and conflicts with a constitutional bar on bills of attainder, which punish a party without a trial.

The TikTok creators built on the app's First Amendment claims, arguing that the bill "erects an unconstitutional prior restraint by banning protected speech on TikTok and by empowering the President to pre-approve who may publish and edit TikTok’s service and, in turn, the speech Petitioners wish to disseminate on that platform."

The individuals said the law "regulates on a content-, speaker-, and viewpoint-basis," since it "expressly bans TikTok but exempts other companies based on the type of content those companies' apps publish." The law is also "content-, speaker-, and viewpoint-based" since it bars TikTok's current "content recommendation system by its current editors," preventing the individuals from suing their "chosen editor and publisher to engage in protected communication," the brief said.

This regulation "is no different from prohibiting American freelance writers from submitting articles to The Economist, or American musicians from disseminating songs through Spotify," the creators said.

The brief said that the law should be subject to the highest level of scrutiny as a result of its infringement of the First Amendment even though the law violates even the lowest level of scrutiny. "The government cannot ban a medium for communication because it believes that medium is used to transmit foreign 'propaganda' or other protected content," the petition said.