TikTok Sues to Block U.S. Ban

TikTok filed a federal lawsuit Tuesday challenging the constitutionality of a new law that requires a sale or ban of the popular social-media app, setting up a court showdown over national security and free speech in the age of global information wars.

The suit, filed directly with a federal appeals court in Washington, D.C., seeks a court order preventing the U.S. from enforcing the bipartisan law signed by President Biden last month. The measure bans Chinese-backed TikTok in the U.S. unless its parent company, ByteDance, divests itself of the platform by mid-January.

Beijing-based ByteDance has said it can’t and won’t sell its U.S. operations by the deadline, leaving litigation as its best hope to maintain its U.S. market. The lawsuit accuses the government of trampling on TikTok’s First Amendment rights—as well as the free-speech rights of millions of Americans—under the banner of national security.

“There is no question: the Act will force a shutdown of TikTok by January 19, 2025,” the lawsuit states, “silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.”

The suit also alleges the U.S. ban is an unconstitutional legislative punishment of TikTok, denies the company equal protection under the law and amounts to an unlawful taking of private property.

The short-form video platform, which has operated as TikTok in the U.S. since 2018, quickly gained mass appeal as an entertainment platform, news source, cultural tastemaker and activist hub.

More than half of all U.S. adults ages 18 to 29 use TikTok, according to the Pew Research Center. About four in 10 TikTok users say they regularly get news from the app—double the number of people who said they did in 2020.

National-security officials and federal lawmakers have watched TikTok’s growth with alarm. Supporters of the law say TikTok offers a foreign adversary a potent tool to spy on Americans and manipulate public opinion through its algorithms. Forcing TikTok to cut ties with China is the only effective way to deal with the security risks, they say.

TikTok says it has taken measures to safeguard user data and prevent Chinese government influence.

The U.S. has long restricted foreign ownership of radio and television broadcasting, but Congress has never taken such drastic actions against an internet platform used by millions of Americans.

For now, life on TikTok is operating as usual. High-profile users are continuing to post content, and TikTok is telling advertisers not to worry. At a conference in New York last week, one of TikTok’s business leaders told a room of 300 media executives that the company isn’t backing down in its fight to stay in the U.S.

TikTok doesn’t comment publicly on its financials, but going into 2024 it wasn’t yet profitable, according to people familiar with the matter.

TikTok ad sales in the U.S. are expected to grow 31% this year to $8.7 billion, according to estimates from Emarketer, an outside firm. The platform is investing heavily to build out a shopping feature that could potentially rival Amazon one day, with users buying and selling items directly on the platform.

If ByteDance were to try to sell off TikTok’s U.S. operations, it is unclear what price it could fetch. One potential suitor has suggested $20 billion as a starting price for its U.S. operations.

But divestiture in any meaningful sense seems to be off the table, since the Chinese government has indicated it won’t allow a forced sale of the app. If TikTok loses the court battle and is forced to withdraw from the U.S. market, competitors such as Instagram, Snapchat and YouTube could look to exploit the gap to their advantage.

Courts previously ruled against some federal and state restrictions on TikTok, but have left the First Amendment issues unsettled.

A federal judge in Washington, D.C., ruled against Commerce Department efforts to ban TikTok during the Trump administration, deciding the agency exceeded its authority under a law from the 1970s called the International Emergency Economic Powers Act.

In a separate Pennsylvania case, another U.S. district judge, citing similar legal grounds, sided with a group of TikTok stars that sued the Trump administration.

The current case is different, however, because it is Congress that took action—after classified briefings—rather than the White House trying to claim authority for a ban under a decades-old law.

The GOP-led House passed the bill overwhelmingly in March. The Senate then took a more cautious view of the legislation, but ultimately approved it after extending the time period for TikTok to find a buyer.

Lawmakers, mindful of the coming legal scrutiny, took steps aimed at shoring up the legislation, including by framing the measure as a forward-looking effort to stop potential spying on Americans rather than an attempt to punish TikTok.

“It’s not about shutting down speech,” Mike Gallagher, a former Republican congressman from Wisconsin who helped draft the legislation, told reporters in March before he left office. “As long as the ownership structure is changed, TikTok can continue and Americans can say whatever the heck they want.”

TikTok was already restricted on federal government smartphones. Many states have also banned the platform on state government devices.

Several Supreme Court precedents could be relevant in the legal fight, including a 1965 case in which the high court said citizens have a right to receive information even if it is foreign propaganda. In that case, justices invalidated a federal law that made it more difficult for Americans to receive foreign mailings of Communist political propaganda.

Renewed calls to ban TikTok began after the Oct. 7 attack by Hamas on Israel. Some users felt there was an increase in antisemitic content posted to the platform.

One analysis—looking at the number of times users watched videos with certain hashtags—found videos with pro-Palestinian hashtags were getting far more views than those with pro-Israel hashtags. In some cases, the ratio was as high as 69 to 1, according to the analysis done by San Francisco-based data scientist Anthony Goldbloom.

TikTok, whose U.S. operations are based in Los Angeles, said its app doesn’t promote one side of an issue over another and that it hasn’t been asked by the Chinese government to turn over U.S. user data.

In the coming litigation, the Justice Department will need to show that Congress had compelling reasons that justify the burdens on free speech that come with shutting down a popular communications platform. It will also have to rebut arguments by TikTok that lawmakers’ concerns could have been addressed through restrictions that were more narrowly tailored than a ban or forced sale of the app.

The concerns have to be more than speculative, said David Greene, a lawyer with digital civil liberties nonprofit Electronic Frontier Foundation, which opposes the ban.

“They’re going to have to show this is a real and actual security concern, not a hypothetical,” he said.

The Justice Department declined to comment on the lawsuit.

It is possible that the U.S. government could disclose to the courts classified information about TikTok’s alleged security threat.

“It’s going to turn on whether the national security argument put forward by the government is strong enough,” said Alan Rozenshtein, a University of Minnesota constitutional law professor. “At the end of the day, that’s what this comes down to.”

Write to Jacob Gershman at [email protected] and Meghan Bobrowsky at [email protected]