On Friday in the Eastern District of Pennsylvania, in the latest in the United States’ attempt to ban TikTok, Judge Wendy Beetlestone filed an opinion blocking the Department of Commerce’s remaining restrictions on the social media app that were set to go into effect on November 12. The first ban was blocked in a different suit, filed by TikTok. This second suit was brought by TikTok influencers Douglas Marland, Cosette Rinab and Alec Chambers’ against President Donald Trump in his official capacity, Wilbur L. Ross, Jr. in his official capacity as Secretary of Commerce and the U.S. Department of Commerce.
The three TikTok content creators filed a motion to preliminarily enjoin the enforcement of an executive order which would effectively ban TikTok in the United States starting November 12 over national security and other concerns by restricting web hosting, content delivery, and other aspects of the app.
The TikTok content creators were concerned that the ban would prevent them from earning a living. Specifically, “Plaintiff Rinab, for example, creates videos for fashion brands and other companies, and earns between $5,000 and $10,000 per video. Further, the exposure Plaintiffs have obtained through TikTok has resulted in promotional and branding opportunities. For instance, Plaintiff Chambers earned $12,000 for promoting the Extra gum brand in a TikTok video. Plaintiff Marland currently has 2.7 million followers on the app, Plaintiff Chambers has 1.8 million followers, and Plaintiff Rinab has 2.3 million followers. Without access to the TikTok app, Plaintiffs will lose access to all of these followers, as well as to the professional opportunities afforded by TikTok.”
While this court denied the plaintiffs’ request for a temporary restraining order as to the first ban because the plaintiffs did not demonstrate a likelihood of success on the merits and did not meet their burden to show irreparable harm, a court in another suit found that TikTok established those requirements, and so the injunction was granted. The United States appealed this injunction, and TikTok has sought a preliminary injunction for the remaining prohibitions.
This court considered the likelihood of success on the merits for the content creators against the Commerce Identification, the agency action which identified the exact prohibited transactions, is at issue. The plaintiffs challenged the action on statutory and constitutional grounds. The plaintiffs averred that this violated the First and Fifth Amendments of the U.S. Constitution and the Administrative Procedures Act, “as it is both arbitrary and capricious.” Moreover, the plaintiffs asserted ultra vires claims that the action violates the International Emergency Economic Powers Act’s (IEEPA) “informational materials” exception and the Act’s prohibition to regulate “personal communications…not involving a transfer of anything of value,” and it is allegedly “not responsive to the national emergency declared” in the executive order. The court found that the plaintiffs established a likelihood of success on the merits of their ultra vires claims.
Judge Beetlestone agreed with the plaintiffs, finding that TikTok videos constitute “informational materials” which are exempt under the IEEPA. The judge stated, “The 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 § 1702(b)(3)” of the IEEPA.
Additionally, “[t]he Commerce Identification also represents, at minimum, an indirect regulation of these informational materials….The TikTok app is a platform for creating and exchanging informational materials.” Therefore, the Department of Commerce is purportedly attempting to regulate information materials via its prohibited transaction, which would mean TikTok could no longer be used to transfer informational materials. As a result, the judge felt that this properly demonstrated that the Commerce Identification is indirectly controlling information materials in violation of the IEEPA.
The court also found that the plaintiffs demonstrated a likelihood of irreparable harm if the prohibitions went into effect because if so, the plaintiff influencers “will lose their ability to engage with their millions of followers on TikTok, and the established related brand sponsorship.” Moreover, the plaintiffs claimed that they have “tried and failed to establish a following and work as an influencer on competitive platforms.” The court noted that this harm cannot be remedied with damages because the APA does not provide for monetary relief. As a result, the plaintiffs have demonstrated the likelihood of irreparable harm if the prohibitions took effect on November 12. Furthermore, the court found that the balance of equities and the public interest are both in favor of an injunction.
Therefore, Judge Beetlestone granted the plaintiffs’ request for a preliminary injunction for the Department of Commerce’s prohibitions set to take effect on Nov. 12. As a result, these prohibitions have been temporarily halted by the court.
The plaintiffs are represented by Hangley Aronchick Segal Pudlin & Schiller as well as Davis Wright Tremaine LLP. The defendants are represented by the Department of Justice.
