TikTok Users Strike at TikTok Ban
A petition representing several TikTok users or perhaps more accurately, TikTok creators, has been submitted to the United States Court of Appeals for the District Court of Columbia Circuit challenging the constitutionality of the “Protecting Americans from Foreign Adversary Controlled Applications Act” (better known as the “TikTok Law” or “TikTok Ban”; hereinafter referred to as the “Act”.
TikTok, Inc. previously submitted its own petition challenging the Act on multiple grounds, primarily arguing it was a violation of TikTok, Inc.’s First Amendment rights. This new creator petition seeks relief on First Amendment grounds only arguing the Act is violating their protected speech rights such as when they create videos on the TikTok app. According to at least one report, TikTok, Inc. funded the petition brought by these creators.
Much of this petition appears to have the aim of creating an emotional response. It tells the stories of these TikTok creators who have overcome real adversity and created followings, businesses, and communities from all walks of life. The petition argues that the app has enriched us all and spread into American culture far beyond direct users of the app. It notes that creators make money from TikTok including from the TikTok Creator Fund and thus for some, the Act threatens their livelihood. It appears the petition is trying to cover every possible perspective to be sure as many people as possible are outraged by the Act. For instance, the petition warns that if the U.S. bans TikTok, among other horrible outcomes, one of the successful TikTok creators might have get another job, give up homeschooling, and put his child in daycare.
There is also a significant effort in this petition to distinguish TikTok from typical social media apps. This creator petition calls the TikTok app “irreplaceable”, mentions an attempt to emulate the TikTok recommendation algorithm, and argues that because of TikTok’s video content tools and other attributes, the petitioning creators could not find the same experience or success elsewhere.
In this petition, we see much of the same content rehashed from TikTok, Inc.’s earlier petition. For instance, this petition references failed attempts to ban or constrain TikTok in the U.S. in the past. And like TikTok, Inc.’s petition, this petition argues that the data and other concerns about TikTok are speculative. Also, like the TikTok, Inc. petition, this creator petition calls out the potential hypocrisy of elected representatives in the U.S. for continuing to use the TikTok app even after the Act passed. And it reiterates the TikTok, Inc. argument that the divestiture is not feasible. And not surprisingly, this petition repeats a recurring theme from TikTok that they have been “singled” out.
This petition argues that the Act regulates speech by banning a medium of communication.
The petition argues the Act is a prior constraint, and is a content-, speaker-, and viewpoint- based restriction. It argues it is content- and speaker- based because the Act bans TikTok but not other apps based on the content they provide. (Presumably they are referring to the exception for product review or similar apps.)
Whereas TikTok, Inc.’s petition argued that TikTok is tantamount to an editor because of their recommendation algorithm, this petition argues that the Act is preventing the creators from choosing TikTok to be their editor and publisher for their creations. The petition argues this is an example of content-, speaker-, and viewpoint- based discrimination.
The petition points to many statements by elected members of Congress that the TikTok app is dividing Americans and promotes propaganda as another example of their argument that this Act is engaging in viewpoint discrimination.
Somewhat dramatically, this petition calls for scrutiny that is even higher than strict scrutiny. And as you would expect it would, this petition argues that there is not even a legitimate interest for the U.S. Government to ban the App and in any case the Act is not narrowly tailored for data security purposes. And it argues the Act is overbroad.
TikTok appears to be pulling out all the stops to try to stop their existence in the United States.
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