BASED Politics, Inc. v. Garland

On June 6, the Liberty Justice Center filed a lawsuit to challenge the recently enacted federal TikTok ban for violating its users’ First Amendment right to free speech. The Liberty Justice Center is representing BASED Politics Inc., a nonprofit that publishes educational content on free markets and individual liberty on a variety of platforms, including TikTok, where its accounts have tens of thousands of followers and its videos have millions of views.

In April 2024, President Biden signed the Foreign Adversary Controlled Applications Act, a statute that will effectively ban TikTok in the United States by making it illegal for U.S. users to “access, maintain, or update” any apps owned by “foreign adversaries”—defined to specifically include TikTok. The statute gives TikTok’s parent company, ByteDance Ltd., 270 days—until January 19, 2025—to sell the app to a new owner that the President does not deem a foreign adversary. Otherwise, the federal government will force U.S. hosting services and app stores to shut down all access to the app.

The Liberty Justice Center’s lawsuit argues that the Act violates the First Amendment because it bans all speech on TikTok—even though all, or nearly all, of that speech is constitutionally protected. The lawsuit also argues that lawmakers’ justifications for the ban—national security and protecting Americans from propaganda—cannot justify the infringement on users’ First Amendment rights, because there is no evidence that TikTok threatens national security or that a complete ban is necessary to address whatever threat it might pose. Furthermore, the lawsuit argues, the First Amendment does not allow the government to suppress “propaganda,” which is simply speech.

The Liberty Justice Center’s lawsuit asks the U.S. Court of Appeals for the District of Columbia Circuit to declare the Act unconstitutional and issue an order preventing the U.S. Attorney General from enforcing it.

“The federal government’s ban on TikTok is a ban on speech,” said Jacob Huebert, President of the Liberty Justice Center. “The ban would eliminate a forum where millions of Americans express and hear important ideas. It violates the First Amendment, and the court should strike it down.”

“There’s a popular—and wrong—stereotype that TikTok is just a platform for trending dances. The fact is that millions of Americans use TikTok to exercise their right to free speech, seriously discussing important political and social issues. The First Amendment protects that right, but the proposed TikTok ban would trample all over it in a misguided effort to protect Americans through sweeping acts of censorship,” said plaintiff Hannah Cox, co-founder of BASED Politics.

“It’s not just funny cat videos—millions of Gen Z Americans like me use TikTok to express ourselves, share news, and debate our ideas. Many of us have also invested years of work into building businesses and careers online, and now face the prospect of watching our livelihoods be destroyed overnight,” said plaintiff Brad Polumbo, co-founder of BASED Politics. “The government’s de facto TikTok ban tramples on our First Amendment rights and represents one of the most egregious acts of censorship in modern American history. We are proud to partner with the Liberty Justice Center to stop this unconstitutional act of censorship and the economic carnage it would inflict on hundreds of thousands of Americans.”

BASED Politics Inc. v. Garland was filed in the United States Court of Appeals for the District of Columbia on June 6, 2024.