In December 2020, a Pennsylvania federal judge preliminarily enjoined the Trump administration's ban on the popular video app TikTok, finding that the public interest favors a nationwide injunction.
The case was brought by a group of TikTok creators who argued that the ban infringed on their First Amendment rights to free expression, violated the International Emergency Economic Powers Act (IEEPA), violated the Administrative Procedure Act, and violated their due process rights. The case was one of several cases challenging the ban.
Background
Claiming concerns over national security, the Trump administration issued an executive order and implementing regulations that would have effectively banned TikTok in the United States. The ban was divided into two phases.
The first phase was meant stop U.S. users from downloading or updating TikTok, and the second was meant to prohibit actions that would enable the functioning or optimization of the app. After an initial delay in the ban's implementation, its first phase was scheduled to take effect on September 27, 2020, while the second phase was to take effect on November 12, 2020.
Constitutional and Statutory Challenge to the Ban
Three prominent TikTok content creators sued the government, challenging the ban's legality. They are representative of the 100 million people in the U.S. who find community, discover new sources of information and entertainment, and express themselves on the app. Many also earn a livelihood as a result of their creative output and the global following they have built on TikTok. Because the ban threatened the TikTok creators' livelihood and expressive outlet, they sought to enjoin the ban's enforcement.
On September 26, 2020, the district court denied the TikTok creators' motion for a temporary restraining order. The court found the challenge to the first phase was not ripe and that the plaintiffs had failed to show irreparable harm from the second phase. However, the following day, a Washington, D.C., federal court preliminarily enjoined enforcement of the first phase, holding that it violated IEEPA.
The three TikTok creators then moved for a preliminary injunction to enjoin the ban's second phase. This time, the court agreed, finding that the ban would have effectively prohibited TikTok in the United States and thus likely violated the "informational materials" exception to IEEPA. The court explained that "[t]he short videos created and exchanged on TikTok are expressive and informative, and are analogous to the 'films,' 'artworks,' 'photographs, and 'news wire feeds' expressly protected under [the exception]."
The court also found that the plaintiffs had "demonstrated a clear likelihood of irreparable harm" from the ban, adding that "the government's own descriptions of the national security threat posed by the TikTok app are phrased in the hypothetical." As a result, the court could not find that "the risk presented by the Government outweighs the public interest in enjoining" the ban.
The government appealed the order, but the case is currently being held in abeyance while the Biden administration reviews the executive order and implementing regulations.
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