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Right Wing TikTokers Sue Biden Admin, Challenging TikTok Action on First Amendment Grounds: ‘A Ban on Speech’

June 6, 2024

(Fox Business)—FIRST ON FOX: Right-leaning TikTok users filed a lawsuit Thursday challenging the law President Biden signed forcing a sale of TikTok, arguing it violates the First Amendment.

According to a press release obtained by FOX Business, the Liberty Justice Center filed the lawsuit on behalf of BASED Politics Inc., a nonprofit that publishes content about free markets and individual liberty on TikTok and other social media platforms, where its accounts have tens of thousands of followers and its videos have millions of views.

BASED Politics Inc. v. Garland, which was filed in the U.S. Court of Appeals for the District of Columbia, urges the appeals court to declare the law unconstitutional and issue an order preventing U.S. Attorney General Merrick Garland from enforcing it.

“The federal government’s ban on TikTok is a ban on speech,” Liberty Justice Center President Jacob Huebert said in the release. “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.”

In April, Biden signed into law the Foreign Adversary Controlled Applications Act, which gives TikTok’s Chinese-based parent company, ByteDance, until Jan. 19, 2025 to sell the social media platform to an owner not considered a foreign adversary or face a ban in the U.S.

ByteDance and TikTok sued last month to block the law, arguing that divestiture “is simply not possible: not commercially, not technologically, not legally… There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.”

Biden’s re-election campaign joined TikTok in February and plans to continue using the platform.

The TikTok law was part of a larger $95 billion package that provided aid to Ukraine and Israel for their respective wars.

House Republicans decided in April to attach the TikTok bill to the foreign aid package to help expedite its passage in Congress. The decision came after negotiations with the Senate, where an earlier version of the bill requiring ByteDance to divest its stakes in TikTok in six months had stalled.

The revised legislation extended the deadline, giving ByteDance nine months to sell TikTok and a possible three-month extension if a sale is in progress. The bill would also prohibit the company from controlling TikTok’s algorithm that shows users videos based on their interests.

The measure states that providing services to “distribute, maintain, or update such foreign adversary controlled application”—TikTok—through which “users within the land or maritime borders of the United States may access, maintain, or update such application” is prohibited.

“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,” plaintiff Brad Polumbo, co-founder of BASED Politics, said in the release. “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.”

“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,” he continued. “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.”

Republican and Democrat lawmakers in Congress sought to punish TikTok in the U.S. over claims the platform collects user data and threatens national security and pushes foreign propaganda.

“We can’t take the chance of having a dominant news platform in America controlled or owned by a company that is beholden to the Chinese Communist Party, our foremost adversary,” Wisconsin GOP Rep. Mike Gallagher said in March.

The plaintiffs also said that lawmakers’ motivations for the legislation, in which they claim the app puts national security at risk and spreads propaganda to American users, cannot justify infringing on TikTok users’ First Amendment rights, saying there is no evidence that the platform threatens national security or that a complete ban is necessary to respond to any potential threat. The lawsuit further says that the First Amendment does not allow the government to suppress speech it considers to be propaganda.

“There’s a popular—and wrong—stereotype that TikTok is just a platform for trending dances,” plaintiff Hannah Cox, co-founder of BASED Politics, said in the release. “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.”