Firebaugh v. Garland

In April 2024, President Biden signed into law the Protecting Americans from Foreign Adversary Controlled Applications Act, which prohibits distributing or maintaining a “foreign adversary controlled application,” defined explicitly to include TikTok. TikTok can avoid the Act’s prohibition only by its Chinese parent company ByteDance divesting ownership, which TikTok says is a legal and practical impossibility, meaning it effectively faces a nationwide ban. Other online platforms with only indirect connections to foreign adversary nations also face potential bans under the Act, depending in part on the type of content they host, if the President determines they “present a significant threat” to national security. TikTok users and TikTok filed lawsuits challenging the Act’s constitutionality in the U.S. Court of Appeals for the District of Columbia Circuit. 

Joined by the Institute for Justice and the Reason Foundation, FIRE filed an amici curiae brief explaining how the Act presents an unprecedented threat to Americans’ First Amendment rights by singling out and effectively banning an entire platform for communication that half the country uses to share and consume ideas, news, advocacy, and creative content. We argued the Act is subject to — and fails — strict scrutiny as a prior restraint and content-based speech regulation. In enacting the law, Congress failed to create an official public record that attempts to explain or provide evidence why this severe encroachment on free speech is needed to address a real and serious problem. Statements from lawmakers reveal only illegitimate intent to suppress disfavored speech and nonspecific concerns about national security.