TikTok’s battle to block a law that would force its China-based parent company, ByteDance, to sell the app or face a ban reached a US appeals court on Monday. The company’s lawyer argued that the law violated the First Amendment, stating that it was unprecedented and would have a staggering effect. They claimed that Congress had expressly targeted a specific US speaker and banned the speech of 170 million Americans, which had never been done before. On the other hand, the government argued that the Chinese government’s potential manipulation of the app posed a national security risk. TikTok and the Department of Justice have asked the court to make a decision by December 6.
During the two-hour hearing, the judges appeared skeptical of TikTok’s arguments, particularly regarding the app’s China-based ownership. Judge Sri Srinivasan questioned whether Congress would be allowed to ban a foreign adversary’s ownership of a media outlet within the US during a time of war. Judge Neomi Rao also challenged TikTok, stating that they were relying on a “very strange framework” to overturn the law. Legal experts who observed the hearing noted that the judges seemed critical of TikTok’s position and took the national security arguments seriously.
Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School, expressed his expectations for a unanimous and clear loss for TikTok based on the judges’ questioning. He stated that the judges appeared skeptical of the law’s merits and did not believe it warranted strict or even intermediate scrutiny. Gautam Hans, a law professor at Cornell University, agreed that the panel was tough on TikTok. He mentioned that the judges focused on whether TikTok’s foreign ownership outweighed potential First Amendment concerns. Despite the panel’s decision, the case is expected to reach the Supreme Court.
The Department of Justice argued that the divest-or-ban bill was rooted in national security concerns related to TikTok’s Chinese ownership. They raised concerns about China potentially altering TikTok’s algorithm for nefarious purposes. The DOJ also alleged that TikTok was able to gather sensitive data from its users and cited risks of Beijing weaponizing the app. They argued that TikTok’s parent company, ByteDance, did not qualify for the same First Amendment protections as US firms. The government’s lawyers emphasized the national security risks posed by TikTok.
TikTok has also argued that a divestment within the limited timeline set by the bill is not feasible. They have stated that a sale would require significant time and resources. Former Treasury Secretary Steven Mnuchin has expressed interest in buying TikTok, along with other US investors. Mnuchin has discussed a plan to rebuild TikTok’s recommendation algorithm in the US. The fight over TikTok’s fate has also become intertwined with the 2024 presidential election, with both Donald Trump and Kamala Harris actively using the platform. The Biden-Harris administration signed the divestment bill into law, while Trump has changed his stance, expressing concerns about transferring power and market control to Meta, the parent company of Instagram.
