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Marland v. Trump

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  1. First Amendment

Court: U.S. Court of Appeals for the Third Circuit

Date Filed: Jan. 22, 2021

Background: In August 2020, President Donald Trump issued an executive order that would effectively ban TikTok, the Chinese-owned social media app, from operating in the United States. Trump contended that the app was a threat to national security because of concerns over how it handles Americans’ data.

Comedian Douglas Marland and other popular TikTok content creators responded by suing Trump and other administration officials in October, alleging that the ban was illegal and that it would chill speech. They argued that a 1988 amendment to the International Emergency Economic Powers Act, known as the Berman Amendment, bars the president from directly or indirectly regulating the importation of informational materials when responding to a national emergency. (Before issuing the order banning TikTok, Trump had declared a national emergency under IEEPA, citing threats foreign adversaries posed to U.S. technologies.)

In late October, a federal district court in Pennsylvania issued a preliminary injunction against the TikTok ban. The government then appealed to the U.S. Court of Appeals for the Third Circuit.

Our Position: The Third Circuit should reject the government’s dangerous interpretation of the Berman Amendment.

  • The appellants’ reading of the Berman Amendment would give it the power to sanction press entities and materials that Congress intended to shield.
  • The appellants’ interpretation of IEEPA would raise doubts as to its constitutionality when applied to single out informational materials.

Quote: “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. And while questions of how best to balance internet freedom and Americans’ data privacy may be challenging, the interpretive question presented here is much less fraught. A construction of IEEPA 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.”

Related: The Reporters Committee’s Technology and Press Freedom Project monitors developments in legal cases involving TikTok and other tech companies in its weekly newsletter. Subscribe to get This Week in Technology & Press Freedom delivered to your inbox.