Banning TikTok is Unconstitutional. The Supreme Court Must Step In.

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Last week, the Supreme Court heard arguments in one of the most important First Amendment cases of our time: TikTok v. Garland. Brought by TikTok and its users, the suit challenges a law passed last Congress that will functionally ban the platform in the U.S.starting January 19. If upheld, the law won’t just impact the more than 170 million Americans who use TikTok, it will also endanger the constitutional rights of every American to speak and receive information online.

As explained in the friend-of-the-court brief the ACLU and its partners filed with the Supreme Court, under the First Amendment the government must meet an extraordinarily high bar to ban an entire communications platform. To ban TikTok, the government must show that the ban is the only way to prevent serious, imminent harm to national security and that the ban limits no more speech than necessary to accomplish that purpose. The government has not come close to meeting that standard.

The law at issue gives the president unprecedented power to shut down Americans’ speech and access to information under the guise of protecting national security. It requires TikTok’s parent company, ByteDance, to sell the app or face a ban, while also granting the president broad authority to force divestiture and ban other communications platforms with corporate parents based in China.

The Department of Justice (DOJ) argues the law has two purposes: to limit the Chinese government’s ability to “covertly” manipulate what Americans see on TikTok, and to prevent the Chinese government from accessing Americans’ data. But, given the lack of evidence that TikTok is being exploited in either of these ways, neither satisfies the First Amendment high bar.

The government’s first justification boils down to fear of Chinese government propaganda. Indeed, more than 20 legislators justified their support for banning TikTok in these terms; citing the risk of foreign propaganda as well as other concerns about the content carried on TikTok, such as the content available to minors and the alleged suppression of pro-Ukraine videos.

As a general rule, the government can’t simply ban speech it dislikes. When Congress restricts speech based on its content or viewpoint, and especially when it bars speech in advance, it triggers the strictest test under the First Amendment. That test requires, among other things, real evidence of serious harm. But the DOJ has acknowledged there is no evidence that China is covertly manipulating TikTok’s content in the U.S.

Regardless, courts have long held that the government cannot keep Americans from accessing foreign propaganda. In 1965, the court struck down a law that required the postmaster general to detain “communist political propaganda,” which could be delivered to recipients only after they specifically requested it from the U.S. post office. In its decision, the court reasoned that even this “mere burden” was an unconstitutional effort to “control the flow of ideas to the public.”

Congress’s second justification for the law—to protect Americans’ data from the Chinese government—also fails under the First Amendment. While it is true that TikTok collects large amounts of user data, the government hasn’t pointed to any actual or imminent national security harm from this collection or explained how TikTok’s collection differs from that of countless other companies. But a ban would not effectively address Americans’ data security anyway, because the Chinese government, or other foreign entities, can purchase Americans’ personal data on the open market.

The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead. Others have likened the TikTok ban to existing restrictions on foreign ownership of radio licenses, arguing that if those rules are constitutional, so is this ban. That’s misleading. Those rules govern the allocation of a limited set of broadcast frequencies. The internet doesn’t have such constraints; it can accommodate an endless number of apps and platforms, offering Americans unlimited sources of information.

Banning TikTok is unprecedented, unconstitutional, and un-American. If the Supreme Court allows the government to shut down an entire platform on such a flimsy evidentiary record, it would set a disturbing precedent for future government restrictions on online speech. It would also increase the risk that sweeping invocations of “national security” will trump our constitutional rights.

The government does not get to control how Americans express themselves—on or offline—based on vague and hypothetical harms. This is the hallmark of authoritarian regimes, not the U.S.. The Supreme Court must block the ban and defend the freedoms at the heart of our democracy.

A Tik-Tok Ban? The First Amendment Implications Should not be Underestimated

By Alexander Paykin

• News Center
• A Tik-Tok Ban? The First Amendment Implications Should not be Underestimated

A Tik-Tok Ban? The First Amendment Implications Should not be Underestimated

8.26.2024

By Alexander Paykin

The right to freedom of expression, opinion and information means the right to hold opinions without interference, and to seek, receive and impart information and ideas of all kinds, through any media, regardless of frontiers.

Social media has become an integral part of modern communication, allowing users to create communities and share information, videos and personal messages. Platforms like Facebook, YouTube, X (formerly Twitter), Instagram, TikTok and Snapchat[1] have millions of users worldwide. Although these are private businesses, U.S. social media platforms have been at the center of numerous free speech disputes.[2]

Recently, concerns about the Chinese government’s potential influence over TikTok have led to increased scrutiny of the app in the United States, under allegations that the government of China is collecting data on Americans with the intent to disseminate misinformation.

Interestingly, unlike situations where freedom of speech is restricted because some national security secret might be shared or the speech may incite violence, none of these shared posts are “secret” or “confidential” or necessarily in any way harmful but rather speech that American consumers voluntarily and intentionally put on the internet, on the platform of their choice, with full knowledge of the fact that it becomes public when posted.

TikTok and National Security

The concerns about the risks to national security are not unique to the U.S., as evidenced by bans on the app for government employees in multiple countries.

India implemented a nationwide ban on TikTok in June 2020, citing privacy concerns and potential threats to the country’s sovereignty and security. The Indian government’s decision came in the wake of a military clash along the India-China border and was part of a broader ban on Chinese apps. The move was largely supported in India, where there had been calls for boycotting Chinese products. Unlike the situation in the U.S., TikTok did not challenge the ban in Indian courts, and the ban was made permanent in January 2021.

In the United States, the situation is more complex. On April 24, 2024, President Biden signed into law a bill that would compel ByteDance, TikTok’s Chinese owner, to sell the app or face an outright ban in the United States. While the two issues may not immediately seem correlated, the measure was incorporated into a law that provides additional aid to Israel, as well as Ukraine and Taiwan.[3] This law follows a 2022 ban President Biden put into effect banning the use of TikTok by any federal government employee with limited exceptions.[4]

According to a report by an independent monitor appointed by the U.S. government, U.S. users spend significantly more time on TikTok compared to other social media platforms like Instagram or Snapchat.[5]

This high level of user engagement has intensified concerns about the app’s potential influence.

The U.S. government’s primary argument for a ban on the app is the potential for the Chinese government to access sensitive data belonging to its 170 million U.S. users. This data and the app can then be used to spread misinformation and disinformation.[6] According to Senate Commerce Committee Chairwoman Maria Cantwell, the legislation was created in order to “prevent foreign adversaries from conducting espionage, surveillance, maligned operations, harming vulnerable Americans, our servicemen and women, and our U.S. government personnel.”[7]

While TikTok maintains that it stores U.S. user data in the United States and Singapore and it would not share this data with the Chinese government if requested, some policymakers remain skeptical. They argue that China’s far-reaching National Intelligence Law could compel ByteDance to hand over data to the Chinese government.

Other social media platforms and tech companies collect similar types of user data, and concerns about data privacy and security are not unique to TikTok.[8] However, the focus on TikTok is partially driven by broader geopolitical tensions between the United States and China.

The debate surrounding the House bill has also been fueled by accusations that TikTok’s app has displayed a disproportionate amount of pro-Palestinian and antisemitic content to users in light of the events of Oct. 7 and after.[9] TikTok has previously said that its recommendation-based algorithm does not take sides on issues, and instead the app’s influx of pro-Palestinian sentiment is genuinely generated by users, reflecting their own opinions.[10] Nonetheless, many members of Congress have raised concerns around the trend, saying that young people are being “brainwashed,” and thus, for both these reasons, as well as security concerns, the app should be sold or banned.[11]

Under the law, TikTok would be permitted to continue operating in the United States if ByteDance sold it within 270 days, or approximately nine months, from the date of the law’s enactment, a timeframe that the president could extend to a year.[12] Failure to do so would result in the app being banned from the U.S. market. The legislation also prohibits any connection between ByteDance and TikTok following a sale.

However, the Chinese government could attempt to block a TikTok sale, as Chinese export regulations appear to cover TikTok’s content recommendation algorithm, granting Beijing a say in whether ByteDance could sell or license the app’s most valuable feature.[13]

American Concerns About Data Privacy

The central argument used by attorneys for the U.S. government rests on the app’s collection of user information, including location, browsing history and other metadata. Some lawmakers and experts worry that this data could be accessed by the Chinese government, potentially compromising the privacy and security of American users.[14]

The specific data collected by TikTok includes:[15]

1. User profile information. This includes details such as username, email address, phone number and profile picture.
2. Device information. TikTok collects data about the devices used to access the app, such as the device model, operating system and unique device identifiers.
3. Location data. The app may gather information about a user’s approximate or precise location, depending on the device settings.
4. Usage data. TikTok collects information about how users interact with the app, such as the content they view, like, share and comment on, as well as the duration of their engagement.

Even though users are providing this data voluntarily (much as they do to Google and other companies), American lawmakers claim to worry that the Chinese government could use the data to influence content on the app or to spy on Americans. According to a report by The Wall Street Journal, the U.S. Justice Department has stated that TikTok collected information on U.S. users’ views on sensitive topics such as gun control, abortion and religion. This revelation has further intensified concerns about the app’s data collection practices and potential for misuse.[16]

A 2023 Pew Research Center survey found that 59% of Americans view TikTok as a major or minor threat to national security, with 29% seeing it as a major threat. Forty-six percent of Americans ages 65 and older say TikTok is a major threat, compared with 13% of those ages 18 to 29. Thirty-six percent of U.S. adults who don’t use TikTok believe it’s a major threat, compared with 9% of users.[17]

Some experts maintain that TikTok is 100% owned by the Chinese Communist Party, which is the strategic adversary of the United States and is deemed as the most likely threat for a great power war with the U.S. by 2050.[18] In addition, these experts contend that TikTok collects all user data possible from the app, and likely from all other apps connected through the user’s phone, allowing China to create a full user portfolio for all of its users.[19]

Finally, they assert that TikTok can intentionally and purposely push specific types of propaganda against any person, such as pushing a user to vote differently. Another possibility is that it could push extremist videos at users likely to have an emotional reaction and resort to violence as a result of neurocognitive hacking. The alleged endgame of this sort of neurocognitive hacking is to change a user’s thought processes and decision-making without the user being aware that this has occurred.[20] This argument, however, makes the case for banning the app more complex, as it comes up against First Amendment concerns.

It is worth considering that, to date, there is no public evidence that the Chinese government has accessed or misused TikTok user data.[21] This, of course, assumes that if it were happening, there would be public evidence. At times, there may be threats or even harm without tangible evidence, or the U.S. government may have reasons not to make any evidence public. If there were evidence that contradicted TikTok’s claim and showed that its algorithm is biased and is utilized as a tool to spread pro-Palestinian content, it could possibly support the constitutionality of the government’s actions. If this was being done intentionally with TikTok’s or the Chinese government’s knowledge and support, TikTok could then be seen as a valid national security threat, considering the platform’s interactive nature and extensive reach, which make it an attractive target for malicious actors seeking to undermine national security or advance foreign interests.[22] However, that argument could then hold true of any social media platform that gains any level of popularity, and the slippery slope would become unscalable.

In any event, Shou Zi Chew, TikTok’s CEO, has publicly stated that the Chinese government has never asked TikTok for its data and that the company would refuse any such request. In a recent hearing, Chew said that what U.S. officials fear is a hypothetical scenario that has not been proven.

Further, TikTok argues that it has taken steps to address privacy concerns through initiatives like Project Texas, which involves storing U.S. user data domestically on servers owned and operated by Oracle (a large and respectable American data storage company) with no ability to access the data from China and providing oversight to the U.S. government and third-party companies.[23] TikTok is working on a similar plan for the European Union, which is known as Project Clover.[24]

Meanwhile, some stakeholders, tens of thousands of whom earn money using the platform either through brand partnerships, advertising their businesses or monetizing their content, are concerned about their bottom line. A group of such TikTok creators filed their own lawsuit, subsidized by the company, that will be heard concurrently with TikTok’s own.[25]

TikTok Is Fighting Back

TikTok has vowed to challenge the law, with its chief executive, Shou Zi Chew, reassuring users in a video posted to the platform, stating, “Rest assured, we aren’t going anywhere. We are confident, and we will keep fighting for your rights in the courts.”[26]

On May 7, TikTok filed a lawsuit against the federal government over the new law, setting the stage for a battle over national security and free speech that is likely to be resolved by the Supreme Court.[27] The company’s case relies primarily on the First Amendment, arguing that the law violates the amendment by effectively removing an app that millions of Americans use to share their views and communicate freely. TikTok also contended that a divestiture is “simply not possible,” especially within the law’s 270-day timeline, citing difficulties such as Beijing’s refusal to sell a key feature that powers TikTok in the United States.[28]

TikTok requested that the court issue a declaratory judgment stating that the law violates the Constitution and an order preventing Attorney General Merrick B. Garland from enforcing it. The Department of Justice filed their official answer on July 26.[29]

At the core of the U.S. government’s case is the lawmakers’ intent to protect the United States from what they and some experts believe to be a national security threat, asserting that the Chinese government could pressure ByteDance to hand over sensitive TikTok user data or use the app to spread propaganda. However, the mandate to sell or block the app could lead to changes in TikTok’s content policies and shape what users can freely share on the platform, potentially infringing upon their free speech rights, according to legal experts.[30]

TikTok presented several arguments in its case[31] including:

1. TikTok and its competitors are global in nature, with content accessible across country borders and international videos contributing to its appeal.
2. Moving the app’s underlying coding to a new owner would be impossible, as it would take years for a new set of engineers to familiarize themselves with the code to develop and maintain the platform.
3. TikTok’s success is dependent on its recommendation algorithm, which helps surface tailored content to users, something the Chinese government has stated it would not sell.
4. The company highlighted the billions of dollars it has already invested in addressing potential security risks over the past four years through Project Texas, as well as a draft 90-page national security agreement that made “extraordinary” commitments to the U.S. government.
5. National security concerns about TikTok are “speculative” and do not meet the threshold required to justify violating First Amendment rights.

Other groups, such as the American Civil Liberties Union, which has been a vocal opponent of the bill, may also join the legal fight. The government’s filing states that this legislation is the only way to properly protect American security interests, arguing that proposed threats of a global takeover campaign by China necessitates the limitation on speech that inevitably comes with banning the app.[32]

Project Texas, TikTok’s initiative to respond to these concerns, is also likely to play a key role, as any restrictions must not burden substantially more speech than is necessary to further the government’s legitimate interests. The company wants to persuade the court that the project is a reasonably available alternative to address the government’s concerns.[33]

Additionally, in response to federal concerns over TikTok’s data practices, the company has already created internal systems to safeguard U.S. user data and prevent foreign access to TikTok’s data systems. TikTok contracted U.S.-based Oracle Corporation to serve as the cloud storage facility for all U.S. user data.[34] As the company can easily point out, there are obvious alternatives to a complete ban, such as taking steps like these and others to address data security.

The Time, Place and Manner Doctrine

The United States now bears the burden of proving the constitutionality of its actions, which means proving that the expressive conduct in question falls outside of the category of protected speech. To carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections.[35]

The principal inquiry in determining content neutrality in speech cases, particularly in time, place and manner cases, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.[36]

A content-neutral, time-place-or-manner restriction survives intermediate scrutiny if it is narrowly tailored, serves a significant governmental interest unrelated to the content of the speech and leaves open adequate channels for communication.[37]

The “time, place and manner” doctrine is a key concept in First Amendment jurisprudence and is a tool that allows the government to impose certain restrictions on protected speech, provided these restrictions meet specific criteria. The doctrine recognizes that while the government cannot generally restrict the content of speech, it can place reasonable limits on when, where and how that speech occurs.

For a time, place and manner restriction to be constitutional, it must meet the following criteria:

1. Content-neutral. The restriction must not be based on the content or viewpoint of the speech.
2. Narrowly tailored. The restriction must be designed to serve a significant governmental interest and not burden substantially more speech than necessary to further that interest.
3. Alternative channels. The restriction must leave open ample alternative channels for communication of the information.

Courts have applied this doctrine in various contexts. For example, in Ward v. Rock Against Racism,[38] the Supreme Court upheld New York City’s sound amplification guidelines for outdoor concerts in Central Park. The Court found that the regulations were content-neutral, served the city’s interest in protecting citizens from unwelcome noise and left open ample alternative channels of communication.

In the context of the TikTok ban, the government argues that the law is a content-neutral restriction aimed at protecting national security, rather than suppressing any particular content. To that end, their pleadings argue that China has access and incentive to misuse the app and that data could still leak to China, secretly, because TikTok uses an internal messaging system called Lark, which allows U.S. user data to be stored on Chinese servers and accessed by ByteDance employees in China. This argument may have been powerful a few months ago, but recently Senator Mitt Romney publicly stated that the reason for the ban was at least partially about the overwhelming presence of pro-Palestinian content on the app.[39] In that case, the TikTok ban could be seen as a content-targeted First Amendment violation, and the “national security” justification might be considered a pretext.[40]

Further, TikTok can likely assert that the ban is not narrowly tailored in that, by its own admissions, the government has identified specific issues that could instead be narrowly addressed. While the government points to the use of Lark as a security issue, it seeks to ban TikTok rather than TikTok’s (or anyone’s for that matter) use of the Lark messaging system, which they claim is the tool that allowed collection of bulk user information based on content or expressions, including views on gun control, abortion and religion, and users’ personal data, including driver’s licenses and child sexual abuse materials.[41]

To be narrowly tailored, the restriction must not burden substantially more speech than is necessary to further the government’s legitimate interests. Unlike a content-based restriction of speech, it need not be the least restrictive or least intrusive means of serving the government’s interests. However, the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not advance its goals.[42]

For instance, in Packingham v. North Carolina, the U.S. Supreme Court ruled that a North Carolina law prohibiting registered sex offenders from accessing social media violated the First Amendment right to free speech.[43] The decision emphasized the importance of social media platforms as modern-day public forums for expression.[44]

TikTok argues, along with the content producers who commenced their own action, that TikTok’s proprietary algorithms allow people without many followers to post content that can find a larger audience, and that banning it would eliminate a unique platform for creativity and communication leaving no adequate alternative channels.

In the case at hand, it is going to be challenging to convince the court that TikTok content falls outside of the category of protected speech, as people use TikTok for a variety of reasons, including entertainment, religious and political purposes. Further, because of TikTok’s proprietary algorithm, banning it would impact the dissemination of speech to interested users.

TikTok already has a strong record in similar First Amendment battles. When he was president, Donald J. Trump tried to force a sale or ban of the app in 2020, but federal judges blocked the effort because it would have had the effect of shutting down a “platform for expressive activity.”[45] Montana tried to ban TikTok in the state last year because of the app’s Chinese ownership, but a different federal judge ruled against the state law for similar reasons.[46]

Only one narrower TikTok restriction has survived a court challenge. The governor of Texas announced a ban of the app on state government devices and networks in 2022 because of its Chinese ownership and related data privacy concerns.[47] Professors at public universities challenged the ban in court last year, saying it blocked them from doing research on the app. A federal judge upheld the state ban in December, finding it was a “reasonable restriction” in light of Texas’s concerns and the narrow scope affecting only state employees.[48]

What the U.S. Is Arguing

It is going to prove difficult for the government to show the court that the forced sale or effective ban of TikTok for all U.S. users serves the national-security interest based on the available information. In the Department of Justice’s answer, the government argues that Chinese interference in the U.S. poses such a threat that a ban is the only way forward and that such a measure is a reasonable response to their concerns.[49] The D.C. Circuit Court may not see it that way.

Furthermore, critics say the new bill appears to limit speech substantially more than necessary, as it could result in a blanket prohibition on creating, sharing and viewing videos on TikTok. In essence, the government said in its filing that TikTok proves such a strong security risk that the only reasonable measure to protect the U.S. is to take it off the market completely.[50] This is an exceedingly high bar considering free speech rights are implicated.[51]

However, the U.S. government argues that while the First Amendment guarantees speech without excessive interference, Americans are not guaranteed unlimited platforms to do so, especially if said platform could be considered a threat and there are analogous alternatives.[52] Considering the plethora of other social media platforms and online forums that are available in the U.S. market, the potential removal of TikTok would not necessarily limit Americans from expressing those same exact views in a similar video format elsewhere. If TikTok is able to adequately argue that their app provides a unique form of expression that cannot be replicated on other available platforms, then the government’s argument would fail. A statute that forecloses an entire medium of public expression across the landscape of a particular setting and fails to leave open ample alternatives is rarely allowed.[53]

In its argument, the U.S. government also reasons that the dangers posed by TikTok to national security and the U.S. economy outweigh First Amendment concerns.[54] In an extremely partisan political climate, regulations surrounding concerns about the Chinese government have been commonly agreed upon by members of both parties.[55] For example, in 2022, the Federal Communications Commission voted unanimously to ban new equipment and devices made by Chinese companies Huawei and ZTE.[56] In 2023, Congress formed the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, otherwise known as the “tough on China panel.”[57] The effort, originally spearheaded by the GOP, was created to study and suggest countermeasures against a host of perceived threats from China, ranging from the military to intellectual property theft and Chinese ownership of apps like TikTok.

Regardless of the approach, in order for the U.S. government’s measure to survive, and a sale or ban to be enjoined, the U.S. government must present an ironclad case involving details of what exactly its national security concerns are. In its answer, the government argues that China’s desire to beat out the U.S. in terms of being a global superpower provides ample enough reason to view them as a threat to national security.[58] But without any real details of a direct threat to the security of the country caused by TikTok’s use or China’s alleged misconduct through the app, the government will likely have to build a stronger case to prove TikTok is a threat.

What Happens From Here?

To this point, TikTok has expressed confidence about the prospects of its planned challenge and has already been granted a win with a fast-tracked court date set at the U.S. Court of Appeals for the District of Columbia in September.[59] However, the company is facing other legal challenges that could further complicate matters, including a new suit just brought by the state government of Utah alleging the app’s sexual exploitation of children.[60]

It is difficult to ascertain what a potential forced sale or ban of TikTok would mean for First Amendment law more broadly. Some believe it would embolden the U.S. government, and other governments around the world, to adopt overly restrictive infringing bans on other social media apps, as Turkey did with YouTube and Twitter.[61] Others think the national security risk with TikTok is vital enough to cause need for the ban or sale, but likely would not apply in any other situations or to other similar apps, creating a limited precedent.[62] As we are aware, though, subsequent jurisprudence and legislation are sometimes not limited, even if that caveat is given at the time. At any rate, the First Amendment implications of the legislation to ban TikTok should not be underestimated, even with the present concerns around national security.

In conclusion, while the concerns about the potential risks to American user data are understandable, the actual nature and extent of the threat remain unclear. As the legal challenge unfolds, more evidence may come to light regarding the specific data practices of TikTok and the potential implications for American users. Only time will tell how the case will continue to develop.

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Alexander Paykin, the founder of The Law Office of Alexander Paykin is a litigation and complex transactions attorney focused on commercial, real estate and landlord/tenant law. Leveraging cutting-edge technology and broad international experience, Paykin, a thought leader and educator, offers unique insights into New York’s dynamic legal landscape.  Paykin is the chair of the Committee on Technology and the Legal Profession and serves on the Civil Practice Law & Rules, Law Practice and Court Rules, Law Practice Management, and Law, Youth and Citizenship committees of NYSBA, is on the Technology & Resource Center of ABA’s GPSolo, and also serves on the Legal Technology Resource Committee of the ABA and is a member of the ABA TechShow Board.  He regularly teaches CLEs for the ABA, NYSBA and various other state and local bar associations on technology and the practice of law.

Endnotes

[1] Deborah Fisher, Social Media, Free Speech Center, Middle Tennessee State University, July 10, 2024.

[2] Id.

[3] Joey Garrison, Biden Signs $95 Billion Ukraine, Israel Aid Bill That Includes TikTok Sell-or-Ban Law, USA Today, Apr. 24, 2024, https://www.usatoday.com/story/news/politics/2024/04/24/joe-biden-signs-ukraine-israel-aid-bill-with-sell-or-ban-tiktok-law/73438847007.

[4] David Ingram, Biden Signs TikTok Ban for Government Devices, Setting Up a Chaotic 2023 for the App, NBC News, Dec. 30, 2022, https://www.nbcnews.com/tech/tech-news/tiktok-ban-biden-government-college-state-federal-security-privacy-rcna63724.

[5] Georgia Wells, TikTok Struggles To Protect U.S. Data From Its China Parent, Wall St. J., Jan. 30, 2024,

[6] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC); Sapna Maheshwari, Why the U.S. Is Forcing TikTok to Be Sold or Banned, N.Y. Times, May 8, 2024, https://www.nytimes.com/article/tiktok-ban.html.

[7] Quoted in Haleluya Hadero, Senate Passes Bill Forcing TikTok’s Parent Company To Sell or Face Ban, Sends to Biden for Signature. AP News, April 23, 2024, https://apnews.com/article/tiktok-ban-congress-bill-1c48466df82f3684bd6eb21e61ebcb8d.

[8] Rich Vibert, Why Banning TikTok Will Not Solve Data Security Challenges, Security Mag., Apr. 26, 2024, https://www.securitymagazine.com/articles/100612-why-banning-tiktok-will-not-solve-data-security-challenges.

[9] Sapna Maheshwari, How the Israel-Hamas War Has Roiled TikTok Internally, N.Y. Times, Mar. 28, 2024, https://www.nytimes.com/2024/03/28/business/tiktok-israel-hamas-war-gaza.html.

[10] Jules Roscoe, TikTok Says It’s Not the Algorithm, Teens Are Just Pro-Palestine, Vice, Nov. 13, 2023, https://www.vice.com/en/article/wxjb8b/tiktok-its-not-the-algorithm-teens-are-just-pro-palestine.

[11] Id.

[12] Id.

[13] Josh Ye, Explainer-What Is So Special About TikTok’s Technology, Reuters, Apr. 26, 2024, https://www.usnews.com/news/technology/articles/2024-04-26/explainer-what-is-so-special-about-tiktoks-technology.

[14] Joe Tidy, Is TikTok Really a Danger to the West?, BBC, Mar. 18, 2024, https://www.bbc.com/news/technology-64797355.

[15] William La Jeunesse, Here’s the Data That Tiktok Collects on its Users, FOX Business, Mar. 22, 2023, https://www.foxbusiness.com/technology/heres-data-tiktok-collects-its-users.

[16] Georgia Wells, TikTok Struggles to Protect U.S. Data From Its China Parent, Wall St. J., Jan. 30, 2024,

[17] Colleen McClain, Majority of Americans Say TikTok is a Threat to National Security, Pew Research Ctr., Jul. 10, 2023, https://www.pewresearch.org/short-reads/2023/07/10/majority-of-americans-say-tiktok-is-a-threat-to-national-security.

[18] Peter Suciu, The TikTok Ban Is Truly an Issue of National Security, Forbes, March 15, 2024.

[19] Id.

[20] Id.

[21] Max Zahn, No Evidence of TikTok National Security Threat but Reason for Concern, Experts Say, ABC News, Mar. 28, 2023, https://abcnews.go.com/Technology/evidence-tiktok-national-security-threat-reason-concern-experts/story?id=98149650.

[22] Suciu, supra note 19.

[23] Christiana Silva, What Is Project Texas, TikTok’s Best Chance To Avoid a Ban?, Mashable, Mar. 28, 2023, https://mashable.com/article/project-texas-tiktok.

[24] Clothilde Goujard, TikTok Launches ‘Project Clover’ Charm Offensive To Fend Off European Bans, Politico, Mar. 8, 2023, https://www.politico.eu/article/tiktok-pitches-data-security-plan-to-fend-off-european-bans.

[25] Sepna Maheshwari, TikTok Creators Sue To Block U.S. Law Requiring Sale or Ban, N.Y. Times, May 14, 2024, https://www.nytimes.com/2024/05/14/business/media/tiktok-creators-sue-ban.html.

[26] Ryan Chatelain, TikTok CEO Says ‘We Aren’t Going Anywhere’ After Biden Signs Bill Targeting Company, Spectrum News NY1, Apr. 24, 2024,

[27] Bobby Allyn, TikTok Challenges U.S. Ban in Court, Calling it Unconstitutional, NPR, May 7, 2024, https://www.npr.org/2024/05/07/1246532784/tiktok-ban-us-court-biden-congress.

[28] Id.

[29] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC).

[30] Allyn, supra note 28.

[31] TikTok Inc. and ByteDance Ltd. Petition for Review of H.R. 815 (2024.05.07) (Petition).

[32] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC).

[33] Silva, supra note 24.

[34] Zheping Huang, TikTok CEO Says Oracle Has Begun Reviewing its Source Code, Time, May 23, 2023, https://time.com/6281946/tiktok-oracle-source-code.

[35] U.S. Const. Amend. 1, https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/.

[36] Id.

[37] Ward v. Rock against Racism, 491 U.S. 781(1989).

[38] Id.

[39] Erin Alberty, Sen. Romney Links TikTok Ban to Pro-Palestinian Content, Axios, May 6, 2024, https://www.axios.com/local/salt-lake-city/2024/05/06/senator-romney-antony-blinken-tiktok-ban-israel-palestinian-content.

[40] Id.

[41] Vibert, supra note 8.

[42] Alberty, supra note 39.

[43] Authorities charged Lester Packingham for violating the law after he posted a message on Facebook thanking God after the dismissal of a traffic ticket.

[44] Packingham v. North Carolina, 582 U.S. 98 (2017).

[45] Bobby Allyn, Trump Signs Executive Order That Will Effectively Ban Use of TikTok in the U.S., NPR, Aug. 6, 2020, https://www.npr.org/2020/08/06/900019185/trump-signs-executive-order-that-will-effectively-ban-use-of-tiktok-in-the-u-s.

[46] Amy Beth Hanson and Haleluya Hadero, Montana Becomes First State To Ban TikTok, L.A. Times, May 17, 2023, https://www.latimes.com/world-nation/story/2023-05-17/montana-becomes-1st-state-to-ban-tiktok-law-likely-to-be-challenged.

[47] Marita Vlachou, Judge Strikes Down Challenge to Texas TikTok Ban on Government Devices, HuffPost, Dec. 12, 2023, https://www.huffpost.com/entry/tiktok-texas-judge-ban_n_65783675e4b0db9d2ab6f13f.

[48] Id.

[49] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC).

[50] Id.

[51] Bobby Allyn, Legal Experts Say a TikTok Ban Without Specific Evidence Violates the First Amendment, NPR, May 14, 2024, https://www.npr.org/2024/05/14/1251086753/tiktok-ban-first-amendment-lawsuit-free-speech-project-texas.

[52] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC)

[53] Colacurcio v. City of Kent, 163 F.3d 545, 555 (9th Cir.1998).

[54] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC).

[55] Caitlin T. Chin-Rothman, TikTok: A Casualty of US-China Geopolitical and Economic Tensions?, Georgetown J. of Int’l. Aff., May 19, 2023, https://gjia.georgetown.edu/2023/05/19/tiktok-a-casualty-of-us-china-geopolitical-and-economic-tensions.

[56] Edward Graham, FCC Bans Sale of New Devices From Chinese Companies Huawei, ZTE and Others, Ctr. For Sec. and Emerging Tech., Nov. 28, 2022, https://cset.georgetown.edu/article/fcc-bans-sale-of-new-devices-from-chinese-companies-huawei-zte-and-others.

[57] Anthony Adragna and Daniella Diaz, Surprise: China Has United a Fractured House, Politico, Aug. 1, 2023, https://www.politico.com/newsletters/huddle/2023/08/01/surprise-china-has-united-a-fractured-house-00109149.

[58] Petitions for Review of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland, Nos. 24-1113, 24-1130, 24-1183 (Dist. Ct. Col. Cir. Ct. Wash. DC).

[59] Michael Flaherty, TikTok Ban Case Receives September Court Date, Axios, May 29, 2024, https://www.axios.com/pro/media-deals/2024/05/29/tiktok-ban-court-date-september.

[60] Ben Winslow, Utah Sues TikTok Again, This Time Alleging Sexual Exploitation of Children, Salt Lake Tribune, Jun. 3, 2024, https://www.sltrib.com/news/2024/06/03/utah-sues-tiktok-again-this-time.

[61] Caitlin Vogus, Crunch Times for TikTok and Americans’ Freedom of Speech, Ctr. for Democracy & Tech., Mar. 22, 2023, https://cdt.org/insights/crunch-time-for-tiktok-and-americans-freedom-of-speech.

[62] Moti Mizrahi, Banning TikTok Has Nothing to Do With the Constitutional Right to Free Speech, The Hill, Apr. 29, 2024, https://thehill.com/opinion/technology/4629016-banning-tiktok-has-nothing-to-do-with-the-constitutional-right-to-free-speech.