A group of eight TikTok creators have filed a lawsuit against the recently passed US law that will ban use of the short form video app in the country, unless its China-based owner ByteDance sells the platform by 19 Jan 2025. It follows a similar lawsuit filed by TikTok itself last week.
The creators, their lawsuit explains, “come from different places, professions, walks of life and political persuasions”, but are nevertheless “united in their view that TikTok provides them a unique and irreplaceable means to express themselves and form community”. With that in mind, they “bring this lawsuit to preserve their First Amendment rights and the rights of countless others”.
The TikTok targeting sell-or-be-banned law was passed by US Congress based on concerns that the Chinese government has access to TikTok user-data via ByteDance.
Supporters of the act that introduced the sell-or-be-banned provision insist that the most likely outcome is a change of ownership at TikTok rather than a ban. But in its legal filing last week, TikTok went to great lengths to explain why a sale of TikTok, even just within the US, won't work. Which means the new law is, in fact, a ban.
The new lawsuit takes TikTok’s insistence that a sale isn’t viable as a given. “The act bans TikTok unless its owners divest the platform in a manner that is infeasible, as the company has stated and as the publicly available record confirms”.
Therefore, it goes on, “the act promises to shutter a discrete medium of communication that has become part of American life, prohibiting petitioners from creating and disseminating expressive material with their chosen editor and publisher - and from receiving such material from others”. And that violates the creators’ free speech rights under the First Amendment of the US constitution.
The eight creators involved in the lawsuit are definitely a diverse bunch. Between them, they make videos about sport, baking, books, skincare, LGBTQ life, agricultural issues, biblical literacy and the rights of sexual assault survivors. As well as earning money via TikTok itself, one creator also promotes his music on the platform, while others promote their companies, including a cookie company and a skincare business.
The lawyers leading on the case, Davis Wright Tremaine LLP, are also involved in legal efforts to block the TikTok ban that was passed in Montana. The new lawsuit notes the previous attempts to ban TikTok in the US - both the Montana law and the ban former President Donald Trump attempted to instigate - which were also justified by concerns over user-data. But, the lawsuit states, “two federal district courts have found that such concerns do not justify a ban”.
The data concerns are merely “speculative” anyway, the lawsuit then argues, and even if they weren’t, it says, “they could be addressed with legislation much more narrowly tailored to any purported concern”, instead of via an “extraordinary restraint on speech” that “undermines the nation’s founding principles and free marketplace of ideas”.