TikTok Ban Law Is an Awkward Fit for a First Amendment Challenge

The background and substance of the law to ban TikTok Inc.’s platform in the US make the company’s bill-of-attainder claim better suited to challenging the act than a First Amendment argument.

Shortly after TikTok filed an emergency motion for injunction last month, the US Supreme Court agreed to hear the case on Jan. 10. In doing so, it limited the issue to whether the “Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.”

The case seems straightforward at first glance: Over 170 million people in the US regularly watch and post videos on TikTok, and if the law takes effect, US customers will be deprived of material protected by the First Amendment.

But this is a very unusual First Amendment case in several respects. First, there is no claim that Congress disapproved of the viewpoints taken by the millions of individuals who post on TikTok—nor would such a claim be credible given the breadth and diversity of the opinions expressed.

Second, many laws challenged under the First Amendment aim to suppress certain kinds of speech. For example, the Supreme Court this month will hear a case on whether Texas blocks children’s access to pornographic websites through methods that unconstitutionally interfere with access by adults.

The claim of content-based discrimination in TikTok is based on the law’s exclusion of applications that primarily publish “product reviews, business reviews, or travel information.” But that exclusion is a minor feature of the law and may be an inartful shorthand for a conclusion that these social media companies aren’t controlled by foreign entities. Some members of Congress expressed concerns about some videos on TikTok, but that is hardly a surprise given the billions of postings.

Third, the government’s principal justification in defending the law is its concern that the Chinese company that controls TikTok was—or might be—gathering data from TikTok users and using that data for purposes that will harm US national security interests. Whatever the merits of that defense, it’s a content-neutral reason and not one that offends the First Amendment.

Finally, the act contains a provision that makes a traditional First Amendment claim even more improbable. The law requires TikTok to close its business unless it can find someone else to take it over. So if TikTok can find a buyer, the same material will continue to be available and created in the future, just under new ownership. This provision underscores what an unusual First Amendment case this is.

TikTok has another claim that seems a better fit for this law. The Constitution forbids Congress from passing bills of attainder, laws that single out individuals or businesses for punishment. This prohibition seeks to prevent a single law from determining illegal conduct, concluding a target has engaged in that conduct, and setting the punishment—which is what happened here.

The TikTok law prohibits foreign adversary-controlled entities from distributing applications that US users can access. Subparagraph (g)(3)(A) specifically names TikTok, its parent, and related companies as subject to the ban—without any further findings.

By contrast, the next provision applies to other companies controlled by foreign adversaries, but it also requires the president to make specific findings relative to the company’s potential harm to national security. Further, the provision gives additional procedural protections before any other company can be subject to the ban or forced sale that automatically applies to TikTok.

The singling out of TikTok, without requiring the government to make the additional showings, is the essence of a bill of attainder, which violates separation of powers.

The problem for the Supreme Court is that its order granting review has precluded any legal claims except those under the First Amendment, even though TikTok asked it to consider bill-of-attainder arguments in its challenge.

Given the law’s overwhelming impact on speech, perhaps the court will fashion a new First Amendment doctrine that brings in bill-of-attainder principles when the punishment substantially affects the challenger’s ability to speak and punishes their willing audience. That result would still enable Congress to amend the law by deleting parts that name TikTok and leave it subject to the general provisions intended to protect national security from any company.

Protecting national security is a legitimate goal, but singling out one foreign-controlled company is the wrong way to go about it.

The cases are TikTok v. Garland, U.S., No. 24-656, and Firebaugh v. Garland, U.S., No. 24-657.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Alan Morrison is George Washington University Law School’s associate dean for public interest and public service law and professorial lecturer in law.

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