Congress silenced free speech in TikTok law, platform tells federal court • Ohio

TikTok and its parent company argued Thursday in a federal court in the District of Columbia that the recently enacted law forcing a nationwide ban or sale of the popular platform violates the First Amendment.

TikTok Inc., which operates the video-sharing service in the United States, and its parent company, ByteDance Ltd., which was founded by a Chinese national, filed a brief in the U.S. Court of Appeals for the D.C. Circuit calling the law President Joe Biden signed in April an unprecedented restriction on the constitutional right to free speech.

“Never before has Congress expressly singled out and shut down a specific speech forum,” the brief reads. “Never before has Congress silenced so much speech in a single act. “

Upholding such an “extraordinary speech restriction” would require the court to undertake “exacting scrutiny” of Congress’ action, but Congress provided only a hypothetical national security argument to advance the bill, the companies said.

“Congress gave this Court almost nothing to review,” the brief continues. “Congress enacted no findings, so there is no way to know why majorities of the House and Senate decided to ban TikTok.”

Many individual lawmakers who supported the law raised national security concerns, saying ByteDance’s relationship with the Chinese government meant the country’s Communist Party leaders could demand access to TikTok users’ private data.

They also said the platform, which the company says has 170 million users in the U.S., could be used to spread propaganda.

But under U.S. Supreme Court precedent, labeling speech as foreign propaganda does not allow the government to overlook First Amendment protections, TikTok said in its brief.

Speculation about how the app “might” or “could” be used, rather than any concrete examples of misconduct, do not clear the high bar required to restrict speech, the companies added.

“A claim of national security does not override the Constitution,” the companies wrote Thursday.

Response to lawmakers

The brief said Congress had not included any official findings of harm from TikTok, but several individual members raised specific concerns about the kind of speech found on the platform.

The companies said Thursday those specific complaints bolstered the argument that TikTok is being denied free speech protections.

The brief cited several lawmaker statements:

• U.S. Sen. Mitt Romney, a Utah Republican, U.S. Rep. Raja Krishnamoorthi, an Illinois Democrat who is ranking member on the House Select Committee on China, and former Rep. Mike Gallagher, a Wisconsin Republican who chaired the panel, said the platform’s algorithm fed an overwhelming share of pro-Palestinian content over videos that favor Israel.

• Sen. Tom Cotton, a Republican from Arkansas, said the platform “exposes children to harmful content.”

• Sen. John Fetterman, a Democrat from Pennsylvania, said the law would “make TikTok safer for our children and national security.”

• Nebraska Republican Sen. Pete Ricketts noted the popularity of the hashtag #StandwithKashmir, which protests a policy of India, a…