• by Wendy Davis  @wendyndavis, June 20, 2024

TikTok on Thursday asked a federal appellate court to block a new law that could result in a ban on the app, arguing that the statute amounts to unconstitutional censorship.

“The act is unprecedented. Never before has Congress expressly singled out and shut down a specific speech forum,” TikTok argues in papers filed with the Circuit Court of Appeals for the D.C. Circuit.

“Never before has Congress silenced so much speech in a single act,” the company adds.

TikTok is asking the court to declare the Protecting Americans From Foreign Adversary Controlled Applications Act unconstitutional, and issue an injunction blocking enforcement.

The law, passed earlier this year, prohibits web hosting services and app marketplaces from distributing TikTok unless ByteDance divests the app within one year.

TikTok writes that divestiture is “not possible technologically, commercially, or legally.”

What's more, the company says, even if divestiture were possible, TikTok “would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user.”

The company also argues that lawmakers failed to make a factual record that would justify the measure.

Congress “imposed an extremely broad and consequential speech restriction on a single, identified publisher -- without findings documenting its reasons for acting, supported by hard evidence,” the company contends.

TikTok acknowledged in its brief that a House committee flagged two concerns -- that the Chinese government could obtain data from TikTok about Americans, and that Chinese Communist Party would use the app to spread propaganda -- but argues that neither concern warrants a ban on the platform.

“The government cannot legitimately restrict speech by labeling it foreign propaganda,” TikTok says, adding that speech “does not lose First Amendment protection because the government deems it untrue.”

TikTok adds that concerns about users' data are too speculative to warrant a ban.

“Conjecture over what 'might' or 'could' happen does not suffice to restrict speech,” the company contends.

“If China did wish to obtain such data, it has many other ways of doing so, including purchasing it lawfully through a party in a third country and conducting open-source intelligence gathering,” TikTok adds.

A group of TikTok creators -- including BluffCakes founder Chloe Joy Sexton and 2021 Shark Tank contestant Paul Tran who, along with his wife sells skincare products through the platform -- who sued over the ban are separately urging the appellate court to block the law.

“The First Amendment protects not only a speaker’s right to pick where she expresses herself but also the medium she uses for that expression,” they argue in papers filed Thursday with the circuit court.

They say their posts have gained more traction on TikTok than other social media services due to TikTok's unique recommendation algorithm.

“Unlike other platforms, TikTok’s recommendation system seems to care little about how many followers the creator has,” they tell the appellate court. “As a result, the content on TikTok is, in petitioners’ experience, different and more authentic.”

The creators add that they have “far fewer followers” on other social apps.

“Other social media platforms have attempted but failed to recreate TikTok’s 'secret sauce,'” they say. “It thus comes as no surprise that petitioners have been far more successful sharing their ideas and views on TikTok than anywhere else.”

The appellate court is expected to hear arguments in September.