TikTok says U.S. ban violates the First Amendment right to free speech

TikTok has submitted its opening brief in its legal fight to remain in the U.S., arguing that the government’s ban on the app violates the First Amendment right to free speech. It has also explained why divestment from Chinese parent company ByteDance simply isn’t possible “technologically, commercially, and legally.”

Filed to the District of Columbia Court of Appeals on Thursday, TikTok’s 99-page filing calls for a review of the constitutionality of the Protecting Americans From Foreign Adversary Controlled Applications Act (PAFACA), which was signed into law by President Joe Biden in April.

The legislation introduces a U.S. ban on “foreign adversary controlled applications,” and specifically includes both TikTok and ByteDance by name. The companies have consistently maintained that they are independent of the Chinese government and have not furnished it with Americans’ data.

“Never before has Congress silenced so much speech in a single act,” TikTok’s filing alleges. “The Act is unconstitutional and must be enjoined.”

U.S. TikTok ban accused of violating the right to free speech

In the filing, TikTok notes that laws which restrict free speech are subject to “strict scrutiny.” Under this standard, the U.S. government must prove the legislation is narrowly tailored to advance a compelling governmental interest, and that said law is the least restrictive way this objective can be achieved.

Basically, the government can’t bluntly bulldoze free speech to achieve its goals when a surgical strike would suffice.

TikTok argues that Congress has failed to meet this requirement, as it did not consider less restrictive alternatives before passing a law to ban the app. Such options allegedly included a 90-page National Security Agreement that TikTok negotiated with the U.S. government, which featured “multi-layered safeguards and enforcement mechanisms.” Project Texas, TikTok’s $2 billion effort to wall off U.S. users’ data, was allegedly the company’s effort to start implementing parts of the agreement prior to it being finalised.

“The Act cannot survive First Amendment scrutiny at any step of the analysis: it advances no compelling interests, is not tailored, and disregards less restrictive alternatives,” TikTok’s filing reads.

“There is no indication Congress even considered TikTok Inc.’s exhaustive, multi-year efforts to address the government’s concerns that Chinese subsidiaries of its privately owned parent company, ByteDance Ltd., support the TikTok platform — concerns that would also apply to many other companies operating in China.”

TikTok further objected to PAFACA’s “two-tiered system of speech regulation” which it claims unfairly singles the company out. Noting that the legislation automatically considers an app to be “foreign adversary controlled” if it operated by ByteDance or TikTok, the filing alleges that the law imposes “one standard for TikTok and a different standard for everyone else.” 

Last year TikTok successfully fought off a ban in Montana, a judge finding the law unconstitutional on the basis that it restricted free speech and imposed a punishment on the company without a trial.

TikTok claims divestment is ‘infeasible’

Thursday’s filing also addressed claims that the ban isn’t really a ban because ByteDance could just sell TikTok to a corporation the U.S. approves of. According to TikTok, such divestment within the time frame imposed cannot practically be done within the timeframe afforded to them. The ban is currently scheduled to go into effect on Jan. 19 next year, nine months after the bill was signed.

“Executing a ‘qualified divestiture’ is technologically, commercially, and legally infeasible, particularly on the Act’s timeframe of 270 days (or 360 days with a discretionary extension),” wrote TikTok, adding that it has “repeatedly” explained this to the government. “The effect of the Act is therefore a ban.”

Even if divestment from ByteDance was possible, Thursday’s briefing claimed such a move would transform TikTok in the U.S. into “a shell of its former self.”

According to TikTok, the app runs on “billions of lines of code” which are developed and maintained by thousands of employees across the globe. Divestment would require new engineers to be adequately trained in said code, the company said, a process which would likely take years. Further, TikTok uses custom ByteDance software tools — tools which the new legislation would prohibit it from accessing once divested.

Even if divestment from ByteDance was possible, Thursday’s briefing claimed such a move would transform TikTok in the U.S. into “a shell of its former self.” A U.S.-exclusive TikTok would need to be separated and isolated from all other users across the globe, making it much less engaging and significantly decreasing its commercial value.

Finally, TikTok stated that it cannot legally pursue a sale because the Chinese government will not allow a forced divestment of the app’s recommendation engine. 

“Just as the United States restricts the export of U.S.-origin technologies (e.g., certain computer chips), the Chinese government regulates the transfer of technologies developed in China,” reads the briefing. The U.S. has prohibited the sale of computing chips to companies in China, including advanced AI chips.

Mashable has reached out to TikTok for comment.

It will be a while before we find out the result of TikTok’s legal challenge. Oral arguments are currently scheduled to be held in three months on Sept. 16, four months before the ban is set to come into effect.

The U.S. TikTok ban follows ongoing concern from lawmakers that the Chinese government is covertly spying on users through the popular app, as well as manipulating its algorithm to show China in a favourable light. No public evidence has yet been produced to prove this is actually happening. Senators have also accused TikTok of deliberately promoting support for Palestine to young people in order to cause societal division in the U.S.

If TikTok’s challenge fails, PAFACA could fine the company up to $5,000 for each U.S. user. TikTok has 170 million users in the U.S. (which hypocritically includes both President Biden and former president Donald Trump), meaning it could be hit with a whopping fine of approximately $850 billion if it continues to operate in the country. ByteDance was valued at $223 billion last October.