TikTok’s battle for its future in the United States intensified Monday as the app’s legal team appeared in federal court to contest a potential nationwide ban set to take effect in January. The U.S. Court of Appeals for the D.C. Circuit is grappling with the complex issues of national security and free speech as it considers whether to allow TikTok to continue operating in the country.
The legal proceedings underscored the high stakes involved in this case, which marks one of the most significant challenges TikTok has faced to date. The court’s three-judge panel expressed skepticism about TikTok’s argument that its First Amendment rights should outweigh national security concerns. This skepticism is primarily due to TikTok’s ownership by ByteDance, a Chinese company, which has raised alarms in Washington due to its ties with a geopolitical rival.
The panel questioned whether the government’s national security concerns could legitimately justify a ban on the app, while also acknowledging that such a ban could infringe upon the First Amendment rights of TikTok’s millions of U.S. users. The judges’ deliberations were characterized by a tension between the potential risks posed by foreign ownership and the constitutional rights of American users.
In April, President Joe Biden signed a law that mandates ByteDance to divest its ownership of TikTok or face a ban on its operations in the U.S. The law gives the company 90 days to find a non-Chinese buyer, and if it fails to do so, the ban will be enforced nationwide. This law, which is set to take effect on January 19, has sparked a legal battle that pits concerns over digital free speech against national security imperatives.
The Biden administration is defending the law, arguing that it is necessary to protect U.S. national security interests. However, former President Donald Trump, who previously sought to shut down TikTok during his presidency, has recently reversed his stance and expressed support for the app’s continued presence in the U.S., adding another layer of political complexity to the situation.
As the court considers the case, the Justice Department has requested that the three-judge panel issue a ruling by December. Any decision made by the panel can be appealed to a full panel of the federal appeals court, and ultimately, either side could seek a review from the U.S. Supreme Court.
TikTok’s legal team argues that the app is being unfairly targeted, asserting that forcing a shutdown of a platform used by 170 million Americans would constitute a severe violation of the First Amendment rights of its users. Andrew Pincus, a lawyer representing TikTok, contends that if the government wishes to impose such a ban, it must meet a standard known as “strict scrutiny.” This requires demonstrating a compelling reason for the ban and proving that all other measures have been exhausted. Pincus argues that the government has failed to meet these requirements.
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Circuit Judge Sri Srinivasan challenged Pincus’s argument by presenting a hypothetical scenario: If the U.S. were at war with a country that owned a major media company in America, would Congress be unable to ban the media company without overcoming the high legal hurdles described by TikTok? Srinivasan’s question underscored the complexity of balancing national security concerns with free speech rights.
Pincus compared TikTok to other media outlets, such as Politico and Business Insider, which are owned by foreign entities but continue to operate in the U.S. Despite their foreign ownership, American writers for these publications still enjoy First Amendment protections. Srinivasan, however, pointed out that these outlets are not owned by a foreign adversary like ByteDance, which is based in China.
Federal appeals Judge Neomi Rao questioned Jeffrey Fisher, a lawyer representing TikTok creators, on whether TikTok users have a First Amendment interest in the platform’s ownership. Fisher affirmed that users have a right to engage with any publisher they choose, including foreign-owned ones. He cited examples such as Al-Jazeera, based in Qatar, and Spotify, a Swedish-owned streaming service.
On the other side, Department of Justice lawyer Daniel Tenny argued that TikTok collects vast amounts of data from American users, data that could be valuable to a foreign adversary seeking to compromise U.S. security. Tenny raised concerns that ByteDance could potentially manipulate TikTok’s algorithm to promote pro-China content or use the data to recruit intelligence assets.
Judge Srinivasan responded by noting that Americans choose the content they view on TikTok. He suggested that banning the app would infringe upon users’ rights to access content of their choosing, introducing a serious First Amendment concern.
Judge Rao observed that the law specifically targets TikTok, where U.S. citizens and TikTok’s American operations are engaged in protected speech. The judges acknowledged that while they must defer to Congress’s assessment of national security threats, they must also determine whether the security risks justify imposing restrictions on free speech.
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The specifics of the Department of Justice’s case against TikTok have been shrouded in secrecy. The Biden administration has provided broad outlines of the national security risks associated with TikTok’s Chinese ownership but has kept detailed evidence confidential, citing the potential for “exceptionally grave damage” to national security if such information were released. Significant portions of the case have been redacted, leaving TikTok’s legal team in the dark about key details.
Judge Rao criticized TikTok’s approach, suggesting that the company’s argument seemed to ask the court to challenge Congress’s legislative authority. Rao described this as a “very strange framework” for overturning the law, noting that Congress had enacted the legislation in response to national security concerns.
TikTok’s rise during the pandemic has made it a focal point of scrutiny regarding its ties to China. With over 170 million users in the U.S. alone and around 90% of its users based outside the country, TikTok has become a global social media powerhouse known for its addictive and fast-paced video content. Despite TikTok’s efforts to address security concerns through “Project Texas”—a restructuring plan involving a partnership with Oracle to oversee data security—the debate over its future continues to intensify.
As the legal battle continues, the outcome could have profound implications for digital free speech, national security, and the broader landscape of social media regulation. The court’s decision will likely set a significant precedent for how similar cases are handled in the future.
