TikTok and ByteDance have filed a lawsuit challenging the constitutionality of the Protecting Americans From Foreign Adversary Controlled Applications Act. The legislation, which was signed last month, stipulates that ByteDance must divest from TikTok within nine months. Failure to do so could result in a ban in the country. The bill was motivated by concerns over potential data sharing between TikTok and the Chinese government

According to the lawsuit, the bill effectively bans TikTok, which they say is used by over 170 million American users. The lawsuit argues that the legislation violates several constitutional rights, including freedom of speech, due process, equal protection, and the prohibition against uncompensated takings of private property.

On the First Amendment claim, the plaintiffs argue the Act is an unconstitutional content- and speaker-based restriction that fails strict scrutiny review. They assert the government has provided no evidence that TikTok poses actual national security threats, only speculation. The lawsuit claims Congress disregarded less restrictive alternatives like the comprehensive data security and content moderation measures TikTok negotiated with government agencies over four years.

The lawsuit also alleges the Act is an unconstitutional bill of attainder because it singles out and imposes punitive legislative punishment solely on TikTok and ByteDance without a judicial trial. It claims a denial of equal protection because the Act treats TikTok differently than other similarly situated companies without any rational basis. Further, the plaintiffs argue the Act violates the Takings Clause by forcing ByteDance to shut down or sell its U.S. TikTok business without just compensation. Even a “qualified divestiture” under the Act is allegedly commercially, technologically, and legally infeasible.

The lawsuit requests declaratory and injunctive relief against enforcement of the Act. It represents a high-stakes constitutional challenge to Congress’s effort to ban a major online platform raising novel First Amendment issues about the government’s power to regulate digital speech forums.

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