TikTok Users Challenge Court To Save Their Favorite App
from the dance-challenge? dept
Who has a stronger case that the TikTok ban is unconstitutional? TikTok itself… or its users? We may find out, as both are trying.
Last week, TikTok officially filed a petition to challenge the Constitutionality of the TikTok ban law. I’ve heard a few people say that they don’t believe TikTok has that strong of a case (I, personally, disagree), but that TikTok’s users might have a stronger argument.
Well, they’re going to try, as a group of TikTok users have now filed a similar petition in the DC Circuit focused solely on the First Amendment issue (the only real issue that impacts them). You may recall that some Montana-based TikTok users filed a similar lawsuit in that state to contest the Montana ban, which succeeded. This new case on behalf of users is filed using the same law firm, Davis Wright Tremaine, and some of the same lawyers as the case in Montana.
In Montana, the two cases (TikTok itself and its users) were effectively merged into a single case before one judge. It’s unclear if the same thing will happen here. As this case claims, for users of TikTok, the US government is interfering with their own expressive rights by effectively banning the space in which they prefer to publish their content:
Petitioners are among the 170 million Americans who create, publish, view, interact with, and share videos on TikTok. They rely on TikTok to express themselves, learn, advocate for causes, share opinions, create communities, and even make a living. Although they come from different places, professions, walks of life, and political persuasions, they are united in their view that TikTok provides them a unique and irreplaceable means to express themselves and form community. They bring this lawsuit to preserve their First Amendment rights and the rights of countless others, which are threatened by the Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50 (Apr. 24, 2024).
The Act bans TikTok unless its owners divest the platform in a manner that is infeasible, as the company has stated and as the publicly available record confirms. The Act thus promises to shutter a discrete medium of communication that has become part of American life, prohibiting Petitioners from creating and disseminating expressive material with their chosen editor and publisher—and from receiving such material from others.
This extraordinary restraint on speech violates the First Amendment. In supporting the Act, lawmakers claimed that TikTok “manipulate[s]” American minds and disseminates “propaganda” that would “use our country’s free marketplace to undermine our love for liberty.” But it is the Act that undermines the nation’s founding principles and free marketplace of ideas. The First Amendment to our Constitution precludes Congress from censoring speech because of its content, viewpoints, editorial practices, or identity of speakers or publishers.
I’ve seen some push back on this, claiming that there is no “right” to access TikTok, and that the users are still free to post their content elsewhere. But that makes no sense. The government can’t shut down a newspaper publisher and say that it’s okay because Americans can get their news from elsewhere.
The case details how each of the eight petitioners use TikTok and would be harmed by the site being blocked. The petitioners have a wide variety of backgrounds and experiences, and you can tell that some were chosen to appeal to certain, let’s say… constituencies… on the Supreme Court. I mean…
Petitioner Christopher Townsend lives with his family in Philadelphia, Mississippi. He served in the U.S. Air Force for six years as a cryptologic language analyst. Townsend is now a well-known hip hop artist and founded an organization dedicated to promoting biblical literacy by quizzing individuals on their knowledge of stories from the Bible. Townsend shares videos of these light-hearted and informative biblical quizzes with his 2.5 million TikTok followers. He also uses the app to share his music, which addresses topics such as his religion, patriotism, and political views. Because of the Act, Townsend faces losing the platform on which he is able to express his beliefs and share his spirituality and music with the world.
Petitioner Steven King lives in Buckeye, Arizona. King has used TikTok since 2019 to create humorous content about his daily life and spread awareness about LGBTQ pride, self-confidence, and sober living. King also derives immense satisfaction and enjoyment from using his ingenuity to create content on the app for his 6.8 million followers—and seeing this content reach the kind of audience that finds it most compelling. His content has deeply resonated with the public, some of whom ask King questions on TikTok about his experience coming out as gay in Arizona and his 28-year loving relationship with his husband. This community—which King has been unable to find on other social media and entertainment platforms—means the world to him.
Something for everyone!
The complaint also highlights how some of the other alternatives out there just aren’t equivalent for the petitioners:
In fact, all of the Petitioners have tried using other social media apps, with far less success. For example, King has 6.8 million followers on TikTok, but only about 137,000 on Facebook. Sexton has 2.2 million followers on TikTok, but only about 44,000 on Instagram. Townsend has 2.5 million followers on TikTok, but only about 298,000 on Instagram. Firebaugh has more than 430,000 followers on TikTok, but only about 22,000 on Instagram. Martin has one million followers on TikTok, but only about 10,000 on Instagram. Spann has over 760,000 followers on TikTok, but less than 10,000 on Instagram. Tran’s company has 138,000 followers on TikTok, but less than 2,000 followers on Facebook. And Cadet has 126,000 followers on TikTok, but less than 7,000 on Instagram.
As for the actual First Amendment claim, it’s pretty straightforward:
The Act regulates “speech” under the First Amendment by singling out and effectively banning a medium of communication—TikTok—that Petitioners (and other Americans) use to engage in protected expression, prohibiting them from sending and receiving information they are entitled to communicate.
The Act 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 Act regulates on a content-, speaker-, and viewpoint-basis. The law is content- and speaker-based because 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 because it prohibits operation of TikTok’s current content recommendation system by its current editors, preventing Petitioners from using their chosen editor and publisher to engage in protected communication. From the standpoint of the First Amendment, this restriction is no different from prohibiting American freelance writers from submitting articles to The Economist, or American musicians from disseminating songs through Spotify. The Act further regulates speech based on its viewpoint because it is motivated by a disfavored view of the ideas that are, or could be, expressed or promoted on TikTok.
Indeed, the petition makes clear that this isn’t even like most other challenges of laws where the test for strict scrutiny of regulating speech is a very high bar. Here, they claim the bar should be even higher than strict scrutiny.
The Act for all these reasons bears a heavy presumption of unconstitutionality—more stringent than even strict scrutiny—and fails even intermediate scrutiny. The government cannot ban a medium for communication because it believes that medium is used to transmit foreign “propaganda” or other protected content. Nor does the government have any actual, non-speculative evidence that banning TikTok in its current form enhances Americans’ data security, or that its ban is narrowly tailored to accomplish that objective. The fact that the Act is paired with other federal legislation restricting how data brokers may share and sell American user information to certain foreign entities underscores that the ban is not narrowly tailored.
This is the key point I keep raising when people insist that the TikTok ban is fine. There are always two arguments, and neither make much sense. If the concern is propaganda, too bad. The 1st Amendment protects propaganda. If the concern is data privacy/national security, well, then you have to show some actual evidence to support that claim (and also, maybe, pass a comprehensive privacy bill that applies to everyone instead?)
So neither is an acceptable justification.
The Act is unconstitutionally overbroad because it bans an entire medium of communication and all the speech communicated through that medium, even though, at the very least, the vast majority of that speech is protected and not otherwise subject to suppression.
Unless declared invalid and enjoined, the Act will unlawfully deprive Petitioners of their rights under the First Amendment, inflicting immediate and irreparable harm.
The argument here is simpler and more straightforward than the argument that TikTok itself is making, and is (not surprisingly) designed to cut to the heart of the matter before the court. I expect the DOJ will make all sorts of handwavy claims that the divestiture demand has no impact on speech and do as much to minimize the “ban” part for a failed divestiture.
Either way, we’re off to the races. Not just directly from TikTok, but from the service’s users as well. I hope they post the oral arguments to TikTok.
Filed Under: 1st amendment, dc circuit, doj, merrick garland, tiktok ban, tiktok users
Companies: bytedance, tiktok
Comments on “TikTok Users Challenge Court To Save Their Favorite App”
I’d think the issue of banning the venue has been addressed by precedent already. Governments have tried to sidestep the First Amendment by barring speech in certain areas, arguing that the speakers aren’t harmed because they can speak elsewhere. I don’t recall that argument ever succeeding. “Free speech zones” is a term that comes to mind here as one of the offenders.
I don’t think it’s a strong argument because the opposite is obviously true (there is way more than 170M US users on Facebook), and even if TikTok would have a small userbase, it’s not more okay for government to shut it down.
Once again, I fail to see how any National Security Act would be stronger than any Constitution Amendment, but hey, I’m not an expert on it.
I think this part is somewhat weaker than it could be:
Conspicuously absent is YouTube, with YouTube Shorts being a direct answer to TikTok. I’m surprised that YouTube isn’t even mentioned considering how directly it competes with it.
Re:
Because with YT shorts, anyone can post them. I can ‘extract’ a few moments from a famous person’s video, post it as a short, and no one will know that I did it, it will look like it came from out of the ozone. Just as it would if the original author had done the extracting and posting.
That’s why there are no ‘number of followers’ figures given for YouTube shorts.
This comment has been flagged by the community. Click here to show it.
I have an extremely stupid idea for how the TikTok ban could be made Constitutional: rather than explicitly forcing divestment, the law could use as an enforcement mechanism an exemption from Section 230. So TikTok could be nominally allowed to continue operating in the United States, but it would be counted as a publisher of user content.
(Obviously the better alternative would be regulating large social media platforms as “Common Carriers” under the Telecommunications Act, but Google and Meta would never allow that to happen.)
Re:
Yes or no: Do you believe that the government should legally compel social media platforms to host speech against their will?
Re: Re:
How dare you steal my schtick~! 🙃
This comment has been flagged by the community. Click here to show it.
Re: Re:
Do I think the Chinese government should do a better job of indoctrinating American children into Maoism? Yes. Young people these days are not nearly Maoist enough!
Unfortunately, Chairman Xi is no more a fan of Chairman Mao than Chairman Deng was, so my complaints have fallen upon deaf ears…
Re:
Fuck off.
Re:
Two stupid ideas for the price of one. And they say inflation is rampant!. Pfuh.
Re: Re:
Considering none of this cost you anything, shouldn’t you be asking to talk to someone else’s manager here?
Re:
Are you sure you aren’t begging the question? What makes your proposed idea not a First Amendment violation? TikTok’s moderation decisions of user speech are protected by the First Amendment, and Section 230 makes the First Amendment’s protections of moderation a practical reality by providing an early dismissal opportunity for lawsuits that would already violate the First Amendment with respect to editorial actions on third-party speech. If you remove Section 230 protections then TikTok would go bankrupt to those lawsuits. The US TikTok users would lose their speech platform of choice, thereby turning a violation of TikTok’s speech rights into a violation of users’s speech rights.
The First Amendment, too, would not allow it to happen. (In theory. Unconstitutional legislation tends to be faster than corrective court cases.)
https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to-call-websites-common-carriers/
This comment has been flagged by the community. Click here to show it.
Re: Re:
Accusing a shitpost of employing logical fallacies entirely misses the point that it is a shitpost lol.
And something I never quite understood is the idea that non-US-domiciled persons (natural or corporate) would have US constitutional rights. TikTok users in the US (whether citizens or not), yes. TikTok as a foreign-domiciled, foreign-owned corporation… why?
Do I think the US government should try and ban TikTok? I honestly don’t care. Do I think the way the US government is trying to ban TikTok is stupid and possibly unenforceable? Also yes. But if we’re going to get into the legal nitty-gritty, then obviously things are going to get perverse, because law is inherently perverse.
As for “common carriers”: the distinction between hardware and software is itself entirely arbitrary, and if you want to argue that “common carrier” designation violates the First Amendment, then, sure, try and overturn the Communications Act of 1934 in its entirety, but don’t pretend that’s not what you’re doing.
tl;dr it’s begging the question all the way down, and, if you have a problem with that, why am I the person you’re blaming for the perversity of the situation? 💁🏻♀️
Re: Re: Re:
It’s very simple, the 1A only specifies that “congress shall make no law”, nowhere does it say there are exemptions to that, whether it regards foreign companies or non US citizens.
There are other caveats also, if you are arguing that non US citizens aren’t affected by US law then the reverse is also true which means the US can do nothing to foreign companies offering their services in the US.
Which is a strange thing to say, because it doesn’t matter how a common carrier accomplishes its job, it’s about what job actually is.
Seems you have entirely misunderstood what a common carrier is, in its simplest form a common carrier transport a thing from point A to point B without actually looking at what the thing is or contains. Social media, like TikTok, is an interactive service designed to accept and publish speech or content for others to peruse and respond to.
Anyone who argues that social media should be classified as a common carrier, may I direct you to the nearest physical bulletin board and tell the owner of it that it is now classified as a common carrier; because I believe we have established that the distinction between hardware and software doesn’t matter.
Re: Re: Re:2
If we’re going to go with the strict text of the First Amendment:
It doesn’t say anything about media ownership, now does it? Indeed, the FCC already regulates media ownership in the case of broadcast television.
And a big aspect of jurisprudence is “standing”: in order to overturn unconstitutional laws, either the law must be overturned on appeal after being successfully enforced or someone must sue a government official (possibly preemptively) to keep the law from being enforced.
Many laws cleverly circumvent this by delegating enforcement, e.g. the Texas abortion ban. One needn’t believe a law is good in order to acknowledge that creating torts is an effective strategy for enforcement. Hence a Section 230 exemption being a feasible approach to shutting down a website.
As for “common carriers” being a dumb pipe: the whole point of the designation is to make the service a dumb pipe, hence e.g. ISPs arguing that no really they have a great value-add that makes net neutrality bad for customers actually!
Obviously a recommendation service is its own thing that makes no sense as a dumb pipe, but plenty of services such as, e.g., email basically are dumb pipes, and yet Gmail and the other big providers infamously use anticompetitive email filtering to shut out smaller email providers.
If your response is “oh but junk mail filtering is good actually!” then I will direct your attention to two things:
So in the instance of direct-messaging such as email, where the recommendation algorithm (such as Gmail’s tiered inbox), if present, is only incidental to the core product, one could still very much describe the core product as a dumb pipe, with only the endpoints being a value-add.
Indeed, before Hotmail and Gmail popularized webmail, it was much more common for people to access their email through third-party POP3, IMAP, and SMTP clients like Eudora.
In other words, if one were to attempt to apply “common carrier” logic to a social media feed, the “common carrier” portion would be the chronological timeline, and one could imagine such a designation requiring large platform providers to give users access to a chronological timeline (whether in a web interface or through an open API) in preference to an algorithmic one.
For instance, designating a platform such as Facebook a “dumb pipe” could at the simplest entail requiring Facebook to offer reasonably priced, non-discriminatory access to, e.g., an ActivityPub API, in addition to Facebook’s existing first-part client interface.
To an extent, “common carrier” designation is comparable to EU efforts to regulate the same large platforms in question. And if and when the large platforms start offering something closer to a “dumb pipe” option to EU users but not US ones, it will become harder to make the argument that the algorithm is the only service these platforms are providing.
Anyway, lest you respond with a wall of text arguing any of the specifics here, my point is not to argue any instance in particular but rather to illustrate how the distinction you are trying to make is much fuzzier in practice than you seem willing to acknowledge.
Re: Re: Re:3
Then I’ll just skip over your take on email and other stuff because it has actually very little to do with common carriers, I’ll also ignore everything you said as a response to something you thought I said plus the whole thing with FCC which doesn’t actually regulate speech unless it’s “obscene and indecent”.
So I’ll just ask you, why are you so confused about non US citizens and foreign companies operating in the US having constitutional rights?
Re: Re: Re:4
Because high-minded ideals have very little to do with the political economy of the American legal system? Are you really this unfamiliar with politicians and lawyers?!?
Like I said, legal jurisprudence is inherently perverse. You seem to think that I think this perversity is a good thing, despite my repeated emphasis that I merely find it amusing.
Re: Re: Re:5
Funny how you are avoiding his question..
Re: Re: Re:6
Oh, I have a very simple answer to his question: I am confused why people would think that non-US-domiciled foreigners would have the same rights under the US Constitution because it is demonstrably the case that they do not.
There are countless examples of this disparity from the War on Terror. Are you really this much of a credulous boob?
Re: Re: Re:4
I don’t know how notifications work (since I’ve been manually typing in my info rather than creating an account), but FYI I left a more direct response to your question further down-thread.
But tl;dr considering the fact—most prominently in the “national security” aspects of the War on Terror—that in practice it is demonstrably not the case that foreigners have the same Constitutional protections as US nationals… what exactly is your disagreement with me?
My initial comment was indeed a shitpost in that I was suggesting a farcical approach to the USA government’s animus towards TikTok, but, look… if we accept that this situation is farce all the way down, why are you so angry at me?
Frankly it seems like you’re angry at me because I’m treating the situation as a farce. No? Because I honestly can’t see what else you’re disagreeing with here.
Re: Re: Re:2
Ooh, I missed some obvious low-hanging fruit!
You mean like this?
💩
Re: Re: Re:3
Are you for real?
Are you really this bad at understanding context?
JFC…
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:4
I just giving you the obnoxious pedantry you clearly deserve. 😉
Re: Re: Re:
At least you can admit that your first comment was a shitpost, LOL.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:2
I still put more fiber into my bowel movement than you put into yours, my dear. 💩
Re: Re: Re:
A citizen of a given non-U.S. country goes to the United States for tourism, visiting family, or some other innocuous reason. During their visit, the foreign national unknowingly violates the law in some small way. Without the rights afforded to them by the U.S. Constitution, that foreign national could be detained indefinitely without trial for even the most minor of transgressions.
The Constitution (ostensibly) protects all people within the borders of the United States from tyrannical government overreach. That it protects citizens and non-citizens alike is a feature, not a bug.
Re: Re: Re:2
The worst-case scenario you are describing is, in fact, not that far off from reality.
While the exact mechanics may vary, foreign tourists in most countries, including the United States, can indeed be subject to relatively arbitrary detention.
In the United States, the way this works is with “civil detention” through the immigration system, but with the exception of people seeking asylum and the like most people who could otherwise be subject to “civil detention” choose instead to be deported.
And so on and so forth: the situation is even worse for foreigners who are not physically located in the the United States, who have routinely been subjected to “extraordinary rendition”, possible torture, and indefinite detention in allied countries or on overseas US military bases (like Guantánamo Bay).
As I understand it, despite multiple advance warnings that the US government was coming for it, TikTok nonetheless failed to create a US-domiciled subsidiary that could more easily challenge any impending crackdown. By contrast, it is the norm for most other large multinational corporations to have locally incorporated subsidiaries in most of the countries where they operate.
But by (as far as I know) not having a US-incorporated subsidiary—one which it could more easily sell off—TikTok also faces an uphill battle challenging the US government. No matter the principle, it’s difficult to have the protections of a jurisdiction without also having the responsibilities of that jurisdiction.
(Note: I have not checked whether TikTok has a US-incorporated subsidiary, but if you or anyone else here had foreknowledge that they do you wouldn’t be arguing that they have the same protections under US law without having one.)
Is this a good thing? 🤷🏻♀️ It really does seem like neither party is the “good guy” here, so it’s hard to care? Of course, US-based TikTok users will suffer harm from TikTok being banned here, but they have a much easier argument regarding their constitutional rights than TikTok itself does.
Just another attack in our government’s war to erode our constitutional rights. The constitution is an impediment to their power and quite the inconvenience.
Re:
It’s not our rights in the e pluribus unum sense. The Red Tribe believes in rights only for people who deserve to have them.
This comment has been flagged by the community. Click here to show it.
Re: Re:
The Red Tribe in the sense of Red States or the Red Tribe in the sense of the Red Army?
Because if you’re saying that all animals are equal, but some animals are more equal than others, that statement was in reference to Stalin, not Mao.
(I am not a Maoist, but I am also not a Stalinist.)
This comment has been flagged by the community. Click here to show it.
That seems kinda weird. There isn’t a higher bar than strict scrutiny. And strict scrutiny is already regularly applied to First Amendment cases.
The problem is, in other cases, you don’t have to show some actual evidence. The test is strict scrutiny- is it a compelling state interest, narrowly tailored, and least restrictive.
It’d be nice if they did (and it helps the argument), but that’s not the legal standard, especially for national security cases. Stuff like CFIUS aren’t required to show actual evidence, and it’s unlikely that the strict scrutiny bar is going to change that.
The data privacy argument works, because that shows it’s pretextual/not narrowly tailored. But that doesn’t work for national security.
In my opinion, I still think by far the best shot at this is pointing to Project Texas and trying to argue a ban is not least restrictive. Trying to invent something past strict scrutiny isn’t taking things seriously.
This comment has been flagged by the community. Click here to show it.
Re:
another troll
Re: Re:
I have noticed the tendency to flag any remotely critical comments here. Which, like… we can still see them. We can still see replies. All this does is make “Anonymous Coward” types like you look studiously uninterested in any meaningful conversation.
In my own limited experience here I haven’t even really gotten the impression that anyone arguing with me meaningfully disagrees with me. Instead people just seem to want to think that the US Constitution magically protects the rights that they believe in, when the reality is that this has never been the case, and the US government has constantly impinged people’s ostensible rights for as long as the Constitution has existed.
This is the absurdity of technolibertarianism: none of these rights exist in a vacuum; they have to be meaningfully protected in order to exist. And the US government has a long history of not wanting rights to exist.
If you want to believe in inalienable human rights, that’s great and all, but the US Constitution isn’t going to help you there. The US Constitution has very, very limited applicability in the real world.
I hope one day to hear the real story of why the Tiktok ban was such a bipartisan issue. The national security concerns raised publicly are only trivially more risky than the existing risks of misinformation that percolates through US-owned platforms already. Malicious actors can easily flood any platform with misinformation, especially where they’ve already had 4 years since the last election (or more if they play the long game) to setup accounts that appear trustworthy.
And it takes very little to tip the algorithm. I don’t know what I watched, but the “political” portion of my YouTube feed in recent weeks has tipped from liberal sensationalists claiming every ruling made in a case involving Trump is somehow fatal, to conservative sensationalists talking about renouncing US citizenship to avoid taxes.
This comment has been flagged by the community. Click here to show it.
Re:
As I understand it what happened was the TikTok app directly prompted users to contact their Congressional Representatives and Senators and ask them not to ban TikTok, so thousands of children contacted their Congressional Representatives and Senators asking them not to ban TikTok, and those Congressional Representatives and Senators were like oh my god leave me alone and let me do nothing in peace like I usually do.
Re: Re:
Only a criminal fascist would view informing victims their rights are about to be violated should be the crime.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:
Well I guess that makes criminal fascism a bipartisan effort, then? (Given the bipartisan effort to shut down TikTok, that is.)
This comment has been flagged by the community. Click here to show it.
I’ve said it before (and it was flagged into invisibility because of the hypocritical position on freedom of speech held by many commenters here), and I’ll say it again: the TikTok ban is bound to get struck down because it’s clearly unconstitutional, which is why Congress critters put in some real privacy protecting legislation to cover TikTok (as well as other foreign-owned platforms) after the ban falls.
Re:
Did someone stop you from speaking? I think you are confusing speech with reach.
If you think your post was unfairly flagged, provide a link to it and we’ll see what you actually said.
Re: Re:
The way people flag comments here—and the way flagging works—is downright laughable, in that the replies don’t get hidden, like replies to hidden comments get hidden on Reddit.
So the effect is, instead, that the comment section looks like a bunch of people yelling into a void, until you manually click to show hidden comments.
Also, what people seem to flag is pretty petty: people will flag responses to their own lazy trolling as lazy trolling, almost like the bulk of the people here are lazy trolls!
Re:
…hallucinated nobody mentally competent, ever.
Re: Re:
The Cass Report
Re: Re: Re:
Repeating that phrase over and over as if you’re casting a magic spell won’t make that “spell” any more effective than it is right now.
banning tiktok wont even solve the problem they think exists
So they think Tiktok is beholden to China and may be secretly breaking the law by sending China user data. And they think that if its sold the new owner can be trusted not to do that. How does that make sense? If China and Tiktok are conspiring to steal user data now, then obviously Bytedance would just sell to someone loyal to china so it could continue. And you couldnt stop that because you would have no way of knowing where the new owners loyalties lie.
This comment has been flagged by the community. Click here to show it.
“…spread awareness about LGBTQ pride…”
They just won. Case closed.
2SLGBTQIAA+^13 trumps all!