TikTok faced tough questions from a U.S. appeals court on Monday as China-based ByteDance pushes to block legislation that would force it to stop selling the video-sharing app by Jan. 19 or else ban it entirely.
TikTok's lawyers argued before a three-judge panel that the law, signed by President Joe Biden in April, violates the First Amendment.
“The law before this court is unprecedented and its impact will be enormous,” said Andrew Pincus, TikTok's outside lawyer, during the closely watched hearing.
“For the first time in history, Congress has specifically targeted a specific American speaker and banned his speech and the speech of 170 million Americans,” Pincus added.
Meanwhile, the federal government has strengthened its argument that the risk of the Chinese government manipulating the app poses an unacceptable national security risk.
TikTok, led by CEO Shou Chiu, and the Department of Justice have asked the U.S. Court of Appeals for the District of Columbia Circuit to issue a decision by December 6th.
The two-hour hearing, which included testimony from TikTok creators who said the ban would damage their livelihoods, ended without any clear indication of how the committee would rule.
But the justices seemed unconvinced by key elements of TikTok's position, legal experts told The Washington Post.
At one point, Judge Sri Srinivasan argued against TikTok's Pincus, noting that the case hinged on the app's China-based ownership. He raised the hypothetical question of whether Congress would be allowed to prohibit a foreign adversary from owning media in the United States during wartime.
Meanwhile, Judge Neomi Rao argued that TikTok was relying on a “very bizarre framework” to subvert the law by essentially ignoring the fact that Congress “actually passed the law” and treating it as if it were a federal agency.
“We expected TikTok to have a tough fight in this hearing, but the questions they faced were tougher than we expected,” said Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School. “The justices seemed pretty skeptical about whether this law deserved close or even moderate scrutiny.”
“Such things are hard to predict, but after today's arguments, the wise decision would be that TikTok will unanimously and unequivocally lose,” Hurwitz added, noting that the justices “appear to be taking national security arguments very seriously.”
Gautam Hans, a law professor at Cornell University and associate director of the school's First Amendment Clinic, said the committee “has been tough on TikTok.”
Hans said the court generally is deferential to Congress and wary of getting too involved in foreign affairs, adding that the justices appear to be focusing on whether TikTok's foreign ownership overcomes First Amendment concerns.
“The government has sought to minimize the speech interest in this case, which undoubtedly found support from the committee,” Hans added.
Regardless of the commission's decision, the case is widely expected to eventually reach the Supreme Court.
“The court is required by law to rule quickly, and it is difficult to imagine that the losing party would not seek review by the Supreme Court before the deadline,” said Alan Morrison, a constitutional law expert at George Washington University Law School. “I believe the Supreme Court will hear the case this term.”
The Justice Department argues that the divestment or ban bill is rooted in pressing national security concerns related to Chinese ownership of TikTok.
During the hearing, the federal government noted that China could potentially alter TikTok's algorithm for malicious purposes.
“It's ludicrous that you could somehow detect that these 2 billion lines of code – 40 times the size of the entire Windows operating system and changed 1,000 times each day – have been changed,” Justice Department attorney Daniel Tenney said.
In a July filing, the federal government alleged that TikTok could collect sensitive data from users on issues like gun control and abortion, and raised risks that the Chinese government could weaponize the app for its own purposes.
The federal government also argues that TikTok's parent company, ByteDance, is not entitled to the same First Amendment protections given to U.S. companies.
Aside from First Amendment concerns, TikTok argues that it would not be able to divest within the time frame set out in the bill.
Former Treasury Secretary Steven Mnuchin is among the US investors who have said they would be interested in acquiring TikTok if it were available. As reported by The Washington Post, Mnuchin has held talks with potential partners about a plan to restructure TikTok's recommendation algorithm in the US.
The battle over TikTok's fate is being played out against the backdrop of the 2024 presidential election, with Donald Trump and Kamala Harris both active on the platform.
The Biden-Harris Administration signed the Divestment Bill into law.
President Trump initially supported banning TikTok but then changed his tune, arguing that the bill could hand more power and market dominance to Instagram's parent company, Meta and its CEO, Mark Zuckerberg.
With post wire
