TikTok found itself before a federal court on Monday, embroiled in a pivotal lawsuit as a January deadline rapidly approaches that might see the app discontinued in the United States.
The session, which spanned several hours, left onlookers uncertain of the court’s direction in this critical legal challenge—the gravest TikTok has yet encountered. A trio of judges from the U.S. Court of Appeals for the D.C. Circuit exhibited skepticism regarding TikTok’s argument that its right to free speech outweighs the U.S. national security concerns raised by its Chinese parent company, ByteDance. Nevertheless, they also recognized that the numerous American users of TikTok and its U.S. operations are protected under the First Amendment, noting that a government-imposed shutdown could infringe these rights.
Earlier in April, a new directive from President Biden mandated ByteDance to secure a non-Chinese buyer for TikTok within 90 days or face a nationwide prohibition.
The Core of the Conflict: Expression vs. Security
This law, unless repealed, is set to activate on January 19. Given the ongoing nature of the case, an extension might be forthcoming. This confrontation in Washington marks a prominent battle between digital freedom of expression and national security safeguards.
The Biden administration stands behind the congressional act to ban TikTok, a pivot from former President Trump, who, despite initial attempts to close down the app, has voiced support for its continuity on the U.S. campaign trail.
The Justice Department has proposed a December deadline for the appellate judges to deliver their decision, which, regardless of the outcome, is likely subject to appeal to the full bench of the federal appeals court and potentially to the U.S. Supreme Court.
TikTok’s Defense
TikTok’s legal team contends that the app is being unjustly targeted. Andrew Pincus, representing TikTok, argued that the government must demonstrate a compelling necessity to justify the app’s ban under the stringent “strict scrutiny” legal standard and prove that all other alternatives have been exhausted. Pincus asserts the government has failed on both counts.
Judge Sri Srinivasan raised a hypothetical: if the U.S. were at war with a nation that controls a media company on American soil, wouldn’t it be sensible to prohibit such foreign media ownership? Pincus compared TikTok to other media entities like Politico and Business Insider, which are owned by a German firm, but argued that TikTok, unlike these outlets, is owned by an adversary—China.
Judge Neomi Rao questioned Jeffrey Fisher, representing TikTok creators, on whether TikTok users have a First Amendment stake in the ownership of the platform. Fisher affirmed this, citing global news organizations as examples where such interests exist.
Daniel Tenny, representing the Department of Justice, emphasized that TikTok collects extensive data on millions of Americans, which poses a significant risk if exploited by foreign adversaries. He suggested that ByteDance might manipulate TikTok’s algorithm to favor pro-China content or to sway Americans against the U.S.
The discussion also touched on the unusual nature of the law against TikTok, with Pincus and Rao debating its implications on Congress’s legislative powers. The law, if upheld, could set a precedent for Congress’s ability to regulate foreign-owned digital platforms operating in the United States, potentially expanding its regulatory powers in the digital sphere.
Uncertainty Ahead
As the legal wrangling over TikTok continues, the broader implications for digital free speech and national security remain unresolved. This case not only tests the boundaries of technology and governance but also sets a precedent for how the U.S. navigates the complex terrain of global digital operations against the backdrop of international relations.
