Government Has Extremely Heavy Burden to Justify TikTok Ban, EFF Tells Appeals Court

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SAN FRANCISCO — The federal ban on TikTok must be put under the finest judicial microscope to determine its constitutionality, the Electronic Frontier Foundation (EFF) and others argued in a friend-of-the-court brief filed Wednesday to the U.S. Court of Appeals for the D.C. Circuit.

The amicus brief says the Court must review the Protecting Americans from Foreign Adversary Controlled Applications Act — passed by Congress and signed by President Biden in April — with the most demanding legal scrutiny because it imposes a prior restraint that would make it impossible for users to speak, access information, and associate through TikTok. It also directly restricts protected speech and association, and deliberately singles out a particular medium for a blanket prohibition. This demanding First Amendment test must be used even when the government asserts national security concerns.

The Court should see this law for what it is: “a sweeping ban on free expression that triggers the most exacting scrutiny under the First Amendment,” the brief argues, adding it will be extremely difficult for the government to justify this total ban.

Joining EFF in this amicus brief are the Freedom of the Press Foundation, TechFreedom, Media Law Resource Center, Center for Democracy and Technology, First Amendment Coalition, and Freedom to Read Foundation.

TikTok hosts a wide universe of expressive content from musical performances and comedy to politics and current events, the brief notes, and with more than 150 million users in the United States and 1.6 billion users worldwide, the platform hosts enormous national and international communities that most U.S. users cannot readily reach elsewhere. It plays an especially important and outsized role for minority communities seeking to foster solidarity online and to highlight issues vital to them.

“The First Amendment protects not only TikTok’s US users, but TikTok itself, which posts its own content and makes editorial decisions about what user content to carry and how to curate it for each individual user,” the brief argues.

Congress’s content-based justifications for the ban make it clear that the government is targeting TikTok because it finds speech that Americans receive from it to be harmful, and simply invoking national security without clearly demonstrating a threat doesn’t overcome the ban’s unconstitutionality, the brief argues.

“Millions of Americans use TikTok every day to share and receive ideas, information, opinions, and entertainment from other users around the world lies, and that’s squarely within the protections of the First Amendment,” EFF Civil Liberties Director David Greene said. “By barring all speech on the platform before it can happen, the law effects the kind of prior restraint that the Supreme Court has rejected for the past century as unconstitutional in all but the rarest cases.”