TikTok content creators gather outside the Capitol

TikTok content creators gather outside the U.S. Capitol to voice their opposition to a potential ban on the app, highlighting the platform's impact on their livelihoods and communities in Washington D.C. on March 22, 2023.

(Photo: Nathan Posner/Anadolu Agency via Getty Images)

TikTok Sues US Government Over 'Unconstitutional' Potential Ban

One expert said legislators' admissions "that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend," said one First Amendment expert.

A top First Amendment expert on Tuesday said TikTok has a strong case against the U.S. government as the social media platform filed a federal lawsuit against a potential ban—particularly since proponents of the law have admitted it is aimed at blocking Americans' access to news out of Gaza.

The platform filed the lawsuit against U.S. Attorney General Merrick Garland in the U.S. Court of Appeals for the District of Columbia Circuit nearly two weeks after President Joe Biden signed the Protecting Americans From Foreign Adversaries Act into law as part of a larger foreign aid package.

Under the law, TikTok parent company ByteDance, a Chinese firm, has 270 days to sell the platform, allowing it to continue operating in the U.S. If it does not sell TikTok, the app will no longer be available on U.S. networks and app stores.

As Common Dreams reported Monday, Republican lawmakers including U.S. Rep. Mike Lawler (R-N.Y.) and Sen. Mitt Romney (R-Utah) have linked TikTok to the burgeoning anti-war protest movement spreading across the U.S., with the latter saying in an interview with Secretary of State Antony Blinken last Friday that "there was such overwhelming support" in Congress to shut down TikTok because of the frequent posting of Palestine-related content on the app.

"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," said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, on Tuesday. "TikTok's challenge to the ban is important, and we expect it to succeed. The First Amendment means the government can't restrict Americans' access to ideas, information, or media from abroad without a very good reason for it—and no such reason exists here."

"The fact that some legislators have acknowledged that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend," Jaffer added.

The law's sponsors claim it "is not a ban because it offers ByteDance a choice: divest TikTok's U.S. business or be shut down," reads the lawsuit. "But in reality, there is no choice. The 'qualified divestiture' demanded by the act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally."

Even if selling the app within the time frame was feasible, added TikTok and ByteDance, the law "would still be an extraordinary and unconstitutional assertion of power," ultimately allowing Congress to "circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down."

"And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content—an outcome fundamentally at odds with the Constitution's commitment to both free speech and individual liberty," the plaintiffs continued.

At The Philadelphia Inquirer on Tuesday, columnist Will Bunch noted that about a third of Americans between the ages of 18-29 get their news from TikTok, according to a recent Pew survey—as Romney openly stated he fears last week.

As Bunch wrote:

During the war in Gaza, most mainstream Western journalists have been blocked from entering the war zone. The best source of real-time information is often the phone video of airstrikes and their aftermath either shot by Palestinian journalists—more than 90 of whom have been killed—or civilian bystanders. Look, there's disinformation about every issue on social media—it's a serious problem. I'm a clueless boomer myself about TikTok, but I do spend way too much time on X/Twitter and I can tell you exactly what is radicalizing young people about Gaza.

The reason so many under-30 folks have adopted the Palestinian cause isn't disinformation, from Hamas or China or anyone else. They've been radicalized by the truth—daily videos of young children, some of them bloodied, some of them already dead, covered in dust and targeted by 2,000-pound dumb bombs made right here in America.

"If the real motivation for zapping TikTok from your phone is to silence legitimate political speech, just because a lot of members of Congress don't like it," wrote Bunch, "then this bill is the worst attack on the First Amendment since the government was sending World War I critics like Eugene V. Debs and Kate Richards O'Hare to prison, more than 100 years ago."

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