TikTok Asks Court To Declare Ban Unconstitutional
A new law banning TikTok if it doesn’t divorce its parent company is “obviously unconstitutional,” TikTok Inc. and ByteDance argue in a new federal court filing.
The Protecting Americans From Foreign Adversary Controlled Applications Act, passed and signed into law late last month, singles out ByteDance and its subsidiary TikTok Inc., requiring the former to divest itself of the latter within 270 days. If ByteDance doesn’t, the TikTok app will be banned in the U.S.
Congress is “silencing the 170 million Americans who use [TikTok] to communicate,” and “crafted a two-tiered speech regime” that is unconstitutional, TikTok argues.
The new law allows a similar ultimatum to be applied to other social media platforms with ties to “foreign adversaries” if the president deems them a threat. But this process requires at least some nominal checks and balances that don’t apply in TikTok’s case. And no other app or company is explicitly named in the new legislation.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” states TikTok’s petition to the U.S. Court of Appeals for the District of Columbia.
The company is asking the court to review the constitutionality of the law, which it argues is both a violation of the First Amendment and an unconstitutional bill of attainder. Bills of attainder, which regulate or punish a particular entity (without the benefit of due process), are barred by the Constitution.
TikTok also argues that the law violates its “rights under the equal protection component of the Fifth Amendment’s Due Process Clause because it singles Petitioners out for adverse treatment without any reason for doing so.”
An American Company With American Rights
Opponents of TikTok often argue that as a Chinese company, TikTok is afforded no free speech protections and the First Amendment doesn’t apply here.
This is wrong in two ways. First, because American TikTok users have First Amendment rights which are not in question here.
Second, because TikTok Inc. is a U.S. company. It’s incorporated in California and has its main office there, with additional offices in New York, San Jose, Chicago, and Miami.
TikTok Inc. is a subsidiary of ByteDance, which is incorporated in the Cayman Islands (not China) and its leadership is based in Singapore and the U.S. (not China).
ByteDance was founded in China back in 2012. But today, ByteDance’s founder—a Chinese national based in Singapore—only has a 21 percent ownership stake in the company. Another 21 percent is owned by employees of the company (including around 7,000 Americans, per the petition) and 58 percent is owned by institutional investors, including BlackRock (an American company), General Atlantic (an American company), and Susquehanna International Group (headquartered in Pennsylvania).
It’s hard to pin down TikTok (the platform, not the American company) as belonging to any particular nation. But the idea that it’s purely a “Chinese app” is demonstrably false.
A Ban By Any Other Name
TikTok rejects the idea—often cited by politicians in support of the law—that this isn’t a ban and therefore isn’t actually censorship.
“Banning TikTok is so
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