TikTok Inc. and ByteDance Ltd. filed a lawsuit in the U.S. District Court of Appeals for the District of Columbia Circuit on Tuesday, May 7, 2024, seeking a review of the constitutionality of the Protecting Americans From Foreign Adversary Controlled Applications Act.
President Biden signed the bill in question on Wednesday, April 24, 2024. The Protecting Americans From Foreign Adversary Controlled Applications Act (“the Act”) requires ByteDance, a Chinese internet technology company, to sell its stake in the TikTok app within nine months. If a sale does not occur, the Act would ban the app nationwide. TikTok could be banned in the United States as soon as January 2025, although the Act does permit the president to grant a one-time 90 day extension to complete a sale.
The petition for review alleges that “[f]or 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 1 billion people worldwide.” The petition further states “that even the Act’s sponsors have recognized that [the Act is unconstitutional], and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership.” The petition continues on to clarify that the divestiture required by the Act “is simply not possible: not commercially, not technologically, not legally.”
The petition claims that the Act is a violation of the First Amendment in two ways: (1) “Petitioner TikTok Inc. has a First Amendment interest in its editorial and publishing activities on TikTok” and (2) “TikTok is among the speakers whose expression the Act prohibits.” The petition goes on to state that even if ByteDance could divest itself, its protected speech rights are still burdened since “The Act. . . appears to conclusively eliminate TikTok Inc.’s ability to speak through its editorial and publishing activities and through its own account on the TikTok platform.”
The petition also seeks review on the following grounds: (1) “The Act is an unconstitutional bill of attainder” since it singles out the petitioners for legislative punishment; (2) “[t]he Act violates Petitioners’ rights under the equal protection component of the Fifth Amendment’s Due Process Clause because it singles Petitioners out for adverse treatment without any reason for doing so;” and (3) “[t]he Act effects an unlawful taking of private property without just compensation, in violation of the Fifth Amendment’s Takings Clause.”
The petition seeks relief in the form of a declaratory judgment, an order enjoining the Attorney General from enforcing the Act, judgment in favor of ByteDance and TikTok, and any further relief that may be appropriate.
Additional Reading
TikTok, ByteDance sue to block US law seeking sale or ban of app, Reuters (May 8, 2024)
President Biden Signs Bill Banning TikTok, Justia Legal News (April 24, 2024)
Petition for Review in Tiktok Inc. and ByteDance Ltd. v. Merrick B. Garland (Case No. 24-1113)
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