As expected, TikTok is challenging the constitutionality of the "Protecting Americans From Foreign Adversary Controlled Applications Act” better known as the “TikTok Act”. The TikTok Act requires a practical prohibition of the TikTok app absent a qualified divestiture.
TikTok claims that the law is unconstitutional on multiple grounds focusing primarily on a First Amendment claim. With this claim, TikTok admits that not only do they exercise editorial control over content through the recommendation engine but they are also authors and distributors of content related to current events. They argue that such editorial control and content creation is protected speech that is burdened by this law.
Furthermore, they argue that such burden as is imposed by this law is i) a content- and viewpoint-based restriction, i) discriminates between speakers, and iii) acts as an unlawful prior constraint. TikTok is making these arguments to convince the United States Court of Appeals for the District of Columbia Circuit that the law should be subject to strict scrutiny, a high hurdle for the U.S. Government to overcome. Where strict scrutiny applies to a restriction on speech, such restriction must serve a compelling interest and be narrowly tailored.
Regarding the first element of a strict scrutiny analysis, TikTok does not deny that national security is a compelling interest. But they deny that TikTok poses any national security threat. And they argue the U.S. Government has not officially explained specifically what national security threat TikTok poses. While they acknowledge that some elected officials have indicated foreign propaganda content and data security threats as possible reasons behind the law, they argue such concerns are speculative.
Interestingly, TikTok alluded to the fact that some members of Congress who supported this law may still be on the TikTok platform! They argue this undermines the claim that there is a real national security interest.
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Nonetheless, TikTok states that even if a compelling interest can be found, this law is not narrowly tailored to meet it. To meet the narrowly tailored element of strict scrutiny, the restriction must be the least restrictive means of accomplishing the compelling objective.
TikTok notes it was engaged in discussions with the U.S. Government to create a U.S. owned subsidiary that would have protected the TikTok data and implemented other measures that they believe would have met any presumed national security concerns in a less restrictive manner. Additionally, TikTok argues that other possible less restrictive measures were available such as emulating the E.U.’s Digital Services Act. Thus, TikTok is arguing there are possibilities that are less restrictive and therefore this law is not narrowly tailored.
TikTok separately argues that the law is both under- and over-inclusive and thus for such reasons alone it independently fails strict scrutiny.
Arguing in the alternative as is common practice, TikTok also argues that even if the law is found not to be subject to strict scrutiny, it still fails the intermediate scrutiny test as a time, place, and manner restriction.
Intermediate scrutiny is a lesser standard than strict scrutiny but still has hurdles the U.S. Government must jump over. For intermediate scrutiny, the U.S. Government must show that the law represents a significant governmental interest and is narrowly tailored to achieve it. TikTok’s arguments for why the law fails this lesser standard is just to reference their arguments of why it fails strict scrutiny while adding they believe the law does not leave open another means of communication for TikTok.
Finally, for the First Amendment grounds, TikTok argues that the law forecloses an entire medium of expression and is constitutionally overbroad.
Note that this article’s purpose was to provide a brief synopsis of key First Amendment arguments that TikTok is making to enjoin this law. We plan to provide an analysis of these arguments and the entire petition later.
The case represents unique aspects of the intersection of technology with First Amendment law. And the implications of this case for multiple reasons could not be more enormous. One thing is for certain, this is just the beginning of the TikTok Saga.