Burley Garcia|TikTok sues US government: Lawsuit alleges forced ban or sale violates First Amendment

Alleging First Amendment free speech violations,Burley Garcia TikTok and its Chinese parent company ByteDance filed a lawsuit in federal court seeking to block a new law that would force the sale or a nationwide ban of the popular short-form video app.

The law “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," the petition said.

The TikTok lawsuit, which challenges the law on constitutional grounds, also cites commercial, technical and legal hurdles as well as opposition from Beijing.

Divestiture is “simply not possible,” especially within 270 days, the petition claims. According to the petition, the Chinese government "has made clear that it would not permit a divestment of the recommendation engine that is a key to the success of TikTok in the United States."

TikTok challenges potential ban in lawsuit

“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 one billion people worldwide,” the company said in its petition.

The Justice Department declined to comment.

TikTok filed the petition with a federal appeals court in Washington, D.C. It seeks a court order preventing the U.S. from enforcing the law, which was signed by President Joe Biden less than two weeks ago and which passed overwhelmingly in Congress. Biden could extend the January deadline by three months.

'Grave risk to national security and the American people'

In passing the Protecting Americans From Foreign Adversary Controlled Applications Act, lawmakers cited national security concerns connected to TikTok’s Chinese ownership, alleging TikTok could turn over sensitive data about Americans or use the app to spread propaganda.

"Congress and the executive branch have concluded, based on both publicly available and classified information, that TikTok poses a grave risk to national security and the American people," the Republican chairman of the House Select Committee on the Chinese Communist Party, John Moolenaar of Michigan, said in a statement. "It is telling that TikTok would rather spend its time, money and effort fighting in court than solving the problem by breaking up with the CCP. I’m confident that our legislation will be upheld."

TikTok says it has never been asked to provide U.S. user data to the Chinese government and wouldn’t if asked. ByteDance has said it will not sell its U.S. operations.

TikTok legal fight likely headed for Supreme Court

Previous efforts to restrict TikTok in the U.S. have been struck down by the courts.

If ByteDance does not sell TikTok, the law would prohibit app stores and web hosting services from making the service available to Americans.

“We aren’t going anywhere,” TikTok CEO Shou Zi Chew said in a TikTok video in April. “The facts and the Constitution are on our side.”

Legal experts say the high-stakes legal battle will play out in the courts in coming months and likely will reach the Supreme Court.

The outcome is unclear, according to University of Richmond law professor Carl Tobias. "There is rather limited directly relevant precedent," he said.

While the law implicates free speech, "the national security justification is reasonably strong and courts are likely to take it very seriously," said Justin “Gus” Hurwitz, senior fellow and academic director of the Center for Technology, Innovation & Competition at Penn Carey Law.

"It is a hard question how the Supreme Court would decide it," Hurwitz said. "The current composition of the court does hold very strong First Amendment views. On the other hand, the justices are very likely to take the national security concerns very seriously."

Free speech groups lent their support to TikTok.

“Restricting citizens’ access to media from abroad is a practice that has long been associated with repressive regimes, so it’s sad and alarming to see our own government going down this road. TikTok’s challenge to the ban is important, and we expect it to succeed," Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said in a statement.