A bipartisan effort to ban TikTok nationwide is set to be scrutinized Monday by a federal appeals court tasked with considering whether eliminating the social media giant's U.S. presence violates the First Amendment.
The social media platform and a group of content creators are suing over new laws that could ban the app, bringing concerns about free speech to the forefront while also raising several other issues.
On Monday morning, a three-judge panel of the Federal Court of Appeals in the nation's capital will hear their challenge and decide whether to block the law, which goes into effect as scheduled on January 19th.
President Biden signed the bill in April after it swiftly passed Congress with bipartisan support, setting a deadline for TikTok's China-based parent company, ByteDance, to sell the platform or be banned from U.S. app stores and networks.
ByteDance has argued that it would be virtually impossible to divest, and the law amounts to a nationwide ban on the video-sharing platform.
“The Government is asking this Court to approve the most sweeping speech regulation in our nation's history – legislation that would target and shut down the speech platforms used by 170 million Americans,” the company said in a court filing.
TikTok has entered the political spotlight after lawmakers from both parties expressed concern that the app could be used by the Chinese Communist Party to collect information on Americans and spread disinformation.
At the time, FBI Director Christopher Wray also said there were concerns that TikTok could be used to collect data. “Traditional espionage” Meanwhile, Federal Communications Commission Chairman Brendan Carr said:welcome“We are banning TikTok due to the 'unique threat' it poses.”
The policy was supported by a minority of lawmakers, but its most vocal supporter was progressive Rep. Jamaal Bowman of New York, who Hosted a press conference He will hold a rally with content creators outside the Capitol in March 2023. Reps. Mark Pocan (D-Wis.) and Robert Garcia (D-Calif.) also attended the rally and showed their support.
The growing attention on TikTok prompted its CEO, Shou Zhi Zhu, to testify before Congress last year at a fiery four-hour hearing. At the time, he claimed TikTok has said it does not sell data “to any data brokers,” but critics say it has avoided key questions about how the app uses the data it collects and its ties to China.
By signing the bill, President Biden gave ByteDance just 270 days to either sell TikTok or ban it from U.S. app stores and other “internet hosting services.”
The dispute is now before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit: Judge Sri Srinivasan, an appointee of former President Obama; Judge Neomi Rao, an appointee of former President Trump; and Justice Douglas Bader Ginsburg, an appointee of former President Reagan, who will hear the appeal by random selection.
First, the committee will hear from TikTok's lawyers, followed by lawyers for creators and the Department of Justice, which is defending the law.
Both parties are calling for a decision by December 6th to allow time for the losing side to file an emergency appeal to the Supreme Court before the law goes into effect next month.
TikTok has raised several constitutional arguments against the law, arguing that it constitutes a Fifth Amendment trespasser, targets only the company and violates the First Amendment's protection of free speech.
“The First Amendment requires that this Court review such extraordinary restrictions on speech with the utmost care and rigorous scrutiny,” the company said in a court filing. “But Congress gave the Court very little to review. Because Congress did not enact any decisions, there is no way of knowing why majorities in the House and Senate decided to ban TikTok.”
The Biden administration spent much of its written response defending the legislation outlining its national security concerns about TikTok, though much of the summary was redacted to keep it from the public.
“Given TikTok's widespread adoption in the United States, China's ability to leverage TikTok's features to achieve its overarching objectives to harm U.S. interests creates a national security threat of immense severity and magnitude,” the Justice Department wrote.
The government argues that the First Amendment doesn't apply to TikTok because its parent company is foreign-owned, but that national security concerns still justify the legislation even if constitutional protections were extended to the company.
The company's defense has been bolstered by a long list of conservatives who have filed amicus briefs, including Jeff Sessions and Michael Mukasy, who served as attorneys general under Trump and former President George W. Bush.
Twenty-one sitting Republican state attorneys general also support the legislation, calling TikTok a “particular threat to American consumers.”
“TikTok asks this Court to declare that the people's representatives at all levels of government are powerless to stop hostile foreign powers from spying on Americans. TikTok and the Chinese Communist Party cannot hide behind the First Amendment,” the coalition wrote in the statement.
Meanwhile, First Amendment advocates and libertarian groups like the Cato Institute have supported TikTok and are urging the appeals court to declare the law unconstitutional.
Jameel Jaffer, director of Columbia University's Knight First Amendment Institute, said in a statement that government restrictions on access to foreign media have long been a feature of “repressive regimes.”
“We should be very wary of this practice taking root in the country,” Jaffer said. “At the very least, the government needs to prove that a ban is truly necessary, which it hasn't and can't do.”
