Firebaugh v. Garland: Banning TikTok is unconstitutional

Brian Firebaugh; Chloe Joy Sexton; Talia Cadet; Timothy Martin; Kiera Spann; Paul Tran; Christopher Townsend; Steven King, Petitioners,

v.

Merrick B. Garland, in his capacity as United States Attorney General,

Respondent.

From the Department of Justice in DOJ-Pub. L. No. 118-50

Summary of Argument

This case presents an unprecedented threat to Americans’ expressive rights: Congress has singled out and effectively banned an entire platform for communication that half the country uses to share and consume ideas, news, advocacy, and creative content. Shuttering TikTok will deny millions of Americans access to a unique and important platform for exercising their right to free speech.

The Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, Div. H (Apr. 24, 2024) (“the Act”), is a direct regulation of speech subject to the highest level of First Amendment scrutiny. It explicitly calls out and regulates a specific platform for expression, imposes a prior restraint, and draws content-based restrictions on speech.

In enacting the law, Congress failed to meet its burden of proving it satisfies strict scrutiny—or any level of scrutiny. There are not even published legislative findings or any other official public record that attempts to explain or provide evidence why this severe encroachment on Americans’ right to speak and to receive information is needed to address a real and serious problem. The existing evidence of the law’s purpose—a single congressional committee report and various lawmakers’ public statements—reveals illegitimate intent to suppress disfavored speech and generalized concerns about data privacy and national security. These concerns fall far short of satisfying the relevant constitutional standards. Nor is the Act narrowly tailored to any compelling or substantial government interest, as the First Amendment requires.

This Court should grant the Petitions for Review and enjoin enforcement of the Act as unconstitutional.

Full Brief: Firebaugh v. Garland

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