• by Wendy Davis  @wendyndavis, June 27, 2024

A new law that could result in a ban on TikTok violates the free speech rights of users of the app as well as the company itself, a coalition of digital rights groups argues in new court papers.

The law “directly restricts protected speech and association, deliberately singles out a particular medium of expression for a blanket prohibition, and imposes a prior restraint that will make it impossible for users to speak, access information, and associate through TikTok,” the Electronic Frontier Foundation, Center for Democracy & Technology, Media Law Resource Center and other groups write in a friend-of-the-court brief filed Thursday with the D.C. Circuit Court of Appeals.

They are backing TikTok's request to block enforcement of the Protecting Americans From Foreign Adversary Controlled Applications Act. That law, signed by President Joe Biden in April, will prohibit web hosting services and app marketplaces from distributing TikTok unless it's divested by China-based parent company ByteDance within one year.

Some lawmakers who supported the statute expressed concerns that the Chinese government could spread propaganda through TikTok, and could collect personal data about the app's U.S. users.

The Electronic Frontier Foundation and other groups argue that those types of national security concerns don't justify a ban on the app.

“As the Supreme Court has repeatedly held, the government’s invocation of 'national security' does not diminish First Amendment protections or the scrutiny applied to laws infringing on those rights,” they argue.

The organizations call attention in their brief to a 1971 Supreme Court ruling that allowed The New York Times to publish the Pentagon Papers (which dealt with military involvement in Vietnam), despite vague assertions by the government that doing so could compromise national security.

That ruling is “particularly relevant” because it invalidated a prior restraint on speech -- meaning an order that prohibits speech in advance -- the groups write.

They add that the Foreign Adversary Controlled Applications Act should be considered a prior restraint because it “functionally bars TikTok users from speaking or receiving speech” through the app, and “directly bars TikTok from curating speech for its users before that speech can be published.”

The organizations also say the new law “plainly raises the issue of political bias and motivation, singling out TikTok because of its foreign ownership even as other major social media platforms raise similar privacy and content-moderation issues.”

The appeals court is expected to hear arguments over the law on September 16.