TikTok filed suit in federal court on Monday against the threat of a ban in the United States, arguing that laws targeting the video platform are “unconstitutional.”
TikTok presented its case to a three-judge panel at the U.S. Court of Appeals in Washington, D.C., on Monday. Andrew Pincus, a lawyer for TikTok and ByteDance, said TikTok has a right to free speech. “What's being banned here, or at least burned, is the speech of the U.S. chairman,” Pincus said.
President Joe Biden formally introduced legislation in April that would allow TikTok's Chinese parent company, ByteDance, to sell its stake in the platform to an approved buyer by Jan. 19, citing concerns that TikTok posed a national security threat.
So Lawsuits challenging the threatened banTikTok and ByteDance argue the law is unconstitutional and unenforceable. They argue the law, which protects Americans from foreign hostile control applications, violates the First Amendment, which protects free speech, and that the government cannot dictate the ownership rights of online platforms.
But Judge Sri Srinivasan disagreed, saying the concern was the presence of foreign entities controlling and potentially manipulating TikTok's content. “This case is different because it involves something going on overseas, and in the case of a foreign entity, that entity does not have a First Amendment right to challenge the regulation of its content moderation.” Judge Srinivasan later argued that TikTok could survive as long as it rid itself of Chinese control.
“In the context of the divestiture, I think there are still burdens on U.S. speakers' rights,” Pincus countered.
The lawsuit adds that there is “no doubt” that the legislation would lead to the shutdown of TikTok and silence “the 170 million Americans who use the platform to communicate in ways they cannot find anywhere else.”
“The 'qualifying sale' required by the law to enable TikTok to continue its business in the United States is simply commercially, technically, and legally impossible,” the lawsuit states.
Former Treasury Secretary Steven Mnuchin and billionaire Frank McCourt have expressed interest in buying TikTok, but the Chinese government has voiced opposition to the sale, citing restrictions on the sale of sensitive technology.
Free speech activists, including PEN America, have filed amicus briefs in support of TikTok and ByteDance's lawsuit.
Opponents of the law have stressed that the ban would disrupt the marketing and retail industries, as well as the livelihoods of many content creators, some of whom have filed lawsuits against the US government, including one in which TikTok is footing the legal costs of the lawsuit.
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In court documents filed over the summer, the Department of Justice outlined its main concerns, centering on data and the potential for user manipulation. It said TikTok collects vast amounts of user data, including sensitive information about viewing habits, that could fall into the hands of the Chinese government. It also argued that TikTok's algorithms that curate what users see on the app could be manipulated by Chinese authorities.
“By directing ByteDance and TikTok to covertly manipulate algorithms, for example, China could further its existing malign influence operations and strengthen its efforts to undermine faith in our democracy and exacerbate social divisions,” the Justice Department said.
TikTok says it does not share user data with the Chinese government and that concerns raised by the U.S. government have never been substantiated.
Legal experts expect the case to go all the way to the Supreme Court, where the losing side in federal court will appeal the ruling.
The Associated Press contributed reporting
