EFF, 6 Other Nonprofits Urge D.C. Circuit to Reject 'Sweeping' Federal TikTok Ban

The act “directly restricts protected speech and association,” and it “deliberately singles out a particular medium of expression for a blanket prohibition,” said the brief. The statute also imposes “a prior restraint that will make it impossible for users to speak, access information, and associate through TikTok,” it said.

The statute triggers an “especially exacting form” of First Amendment scrutiny, and it does so for at least two independent reasons, said the brief. First, the act constitutes a prior restraint on TikTok and its users, “an especially disfavored means of restricting First Amendment rights,” it said. That’s because the statute will shut down the app, blocking millions of users, as well as TikTok itself, from engaging in protected expression in advance of the time that their communications are to occur, it said.

Second, even if the D.C. Circuit doesn’t subject the act to the strict scrutiny that's due in prior restraints, the government would still have to satisfy “a strict narrow-tailoring requirement" because the statute “is a total ban on a unique and important means of communication,” said the brief. In these circumstances, courts “still apply an exacting standard,” it said. A total ban of that type fails unless it curtails no more speech than is necessary to accomplish its purpose, it said.

The government’s burden to justify an infringement on First Amendment rights “is the same in the national security context as in any other,” said the brief: “In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when the government invokes national security.”

Amici urge the D.C. Circuit to see the act “for what it is” -- a “sweeping ban on free expression” that triggers the exacting scrutiny under the First Amendment, said the brief. “Applying the proper test,” the D.C. Circuit should grant preliminary injunctive relief under the First Amendment to block Attorney General Merrick Garland from enforcing the ban when it takes effect in mid-January, it said.