The government's attempt to ban TikTok should “ring constitutional alarms,” the Reporters Committee for Freedom of the Press and the digital rights group Electronic Frontier Foundation are telling a federal appellate court.
“The TikTok order expressly singles out a particular communications platform for regulation, an effort that should ring constitutional alarms in the same way that singling out a newspaper or broadcaster would,” the organizations write in a friend-of-the-court brief filed Friday with the 3rd Circuit Court of Appeals.
The groups are weighing in on a dispute over the Trump administration's attempt to ban the social video app in the U.S.
Last year, former President Donald Trump said the Chinese-owned TikTok posed a security risk and mandated a ban on all U.S. transactions with the company. The Commerce Department subsequently issued an implementing order that would have effectively shut down the app by November 12.
It's not yet clear whether President Joe Biden plans to change course.
Three TikTok influencers -- Douglas Marland, Cosette Rinab and Alec Chambers -- sued to block the Commerce Department from moving forward with the planned ban.
U.S. District Court Judge Wendy Beetlestone in the Eastern District of Pennsylvania sided with the influencers, ruling that the ban wasn't authorized by the International Emergency Economic Powers Act.
That law allows the president to declare a national emergency and restrict some transactions with foreign countries. But the statute doesn't authorize the president to regulate “informational material,” including photos and news feeds.
The government recently asked the 3rd Circuit to reverse Beetlestone's decision. The Department of Justice argues that the planned ban wouldn't have violated the International Emergency Economic Powers Act for several reasons, including that the ban wouldn't prevent “informational material from entering or leaving the country,” given that TikTok isn't the only social media platform.
“Even if the prohibitions inhibit U.S. users’ ability to view and share content on the TikTok app, those users could post the same content on other platforms, including on TikTok’s website, that do not present the same national security risks,” the government wrote.
The Reporter's Committee for Freedom of the Press and the Electronic Frontier Foundation say they aren't taking sides over whether TikTok should be banned, but is urging the judges to reject the government's interpretation of the International Emergency Economic Powers Act.
“A construction ... sanctioned by this court that would allow the government to ban a particular newspaper from the United States is not a constitutionally permissible reading, let alone a reasonable one,” the groups write.
Oracle and Walmart recently agreed to purchase stakes in TikTok, but the structure of the tentative deal remains unclear.