Cooley, Social and Racial Justice Nonprofits Challenge Constitutionality of TikTok Ban

Washington, DC – June 27, 2024 – Cooley today filed an amicus brief on behalf of social and racial justice nonprofits in TikTok Inc. and ByteDance Ltd. v. Merrick B. Garland (US Court of Appeals for the DC Circuit) challenging the federal legislation banning TikTok – a modern-day digital town square used by 170 million US users to engage in First Amendment-protected expression. According to the brief, TikTok uniquely empowers diverse groups to build community and solidarity, challenge stereotypes and discrimination, advocate for civil liberties and other social causes, engage in religious practice, encourage democratic participation and fight back against disinformation.

Representing an amicus coalition of more than a dozen social and racial justice community nonprofits, Cooley’s brief challenges the constitutionality of the recently enacted Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA). If sustained, PAFACA would silence protected expression by these nonprofits and the diverse communities they represent. Cooley’s brief highlights how perspectives of historically marginalized communities are often excluded from more established media outlets, and so these diverse groups rely on TikTok to amplify their underrepresented voices to a global audience. 

A complete and total ban on TikTok, the brief explains, is a “blunderbuss approach that eliminates a digital public square and leaves the First Amendment-protected expression of 170 million US users as acceptable casualties.”

The brief also underscores the pervasive undertones of anti-Asian American, Native Hawaiian, and Pacific Islander (AANHPI) sentiment dominating legislative consideration of PAFACA, as well as the US government’s long history of curtailing the constitutional rights of minority groups based on vague and speculative national security concerns.

The brief’s signers represent a nationwide coalition of social and racial justice nonprofits, including Arizona AANHPI for Equity Coalition; Asian American Federation; Asian Americans Advancing Justice Southern California; the Calos Coalition; the Hispanic Heritage Foundation; Muslim Public Affairs Council; Native Realities; OCA Asian Pacific American Advocates of Greater Philadelphia; OCA Asian Pacific American Advocates of Greater Seattle; OCA Asian Pacific American Advocates San Francisco; OCA-Greater Philadelphia; Sadhana; Sikh Coalition; and the South Asian Legal Defense Fund.

Lawyers Matt Nguyen, Kathleen Hartnett, and Travis LeBlanc led the Cooley effort alongside Jamie Robertson, Robert Denniston, and Hilarie Laing, with assistance from 1L Diversity Fellow Hersh Gupta and SEO Diversity Fellow Tarel Dennie.

Read the full brief

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