A panel of federal judges pressed TikTok on Monday to defend its right to continue operating in the United States under Chinese ownership and made pointed remarks that called the company’s legal arguments into question, in a landmark case that could determine whether the video app survives in the country.
In a roughly two-hour appearance before the U.S. Court of Appeals for the District of Columbia Circuit, three judges asked probing questions of both TikTok and the government about an April law that forces ByteDance, the app’s owner, to sell TikTok to a non-Chinese company before Jan. 19 or face a ban in the United States. The lawyers have asked the judges to deliver a decision in the case before Dec. 6, and legal experts anticipate the losing party will appeal to the Supreme Court.
Two of the judges expressed some skepticism around TikTok’s arguments that Congress lacks the authority to pass such a law, and its defense that it was being unfairly singled out. Neomi Rao, one of the judges, said the company’s legal position relied on “a very strange framework for thinking about” congressional authority.
Douglas Ginsburg, another judge in the case, said, “It’s a rather blinkered view that this statute view just singles out one company.”
Two judges also pressed the government on how a ban might infringe on the First Amendment rights of TikTok’s U.S. operation and those of users, and how it would justify that.
A ban on TikTok would be the highest-profile prohibition of a foreign-owned app from the U.S. government. It would upend the app’s status as a cultural juggernaut in America, and force its 170 million U.S. users — and the so-called creator economy it helps to fuel — onto other platforms or revenue sources. It would also escalate a digital cold war with China, which has condemned previous calls from the U.S. government to force a divestment of TikTok.
“It was pretty brutal for TikTok — very little went TikTok’s way,” said Alan Rozenshtein, an associate professor at the University of Minnesota Law School. The court sounded “frankly skeptical of TikTok’s request for it to really second-guess the government.”
American lawmakers and intelligence officials have argued that TikTok is a national security threat under ByteDance. They say its ownership means the Chinese government could use the app to retrieve sensitive information about Americans or to spread propaganda. The government has not offered evidence that TikTok has made content decisions in the United States at the behest of Beijing.
ByteDance and TikTok, along with a group of TikTok creators, sued to block the law in May, arguing it was an unjustified violation of Americans’ rights to free speech. They say that a sale is impossible, in part because the Chinese government may restrict the export of TikTok’s recommendation engine. They have also argued that the United States could impose less restrictive measures on the company to address its national security concerns.
The courtroom in Washington was mostly full throughout the roughly two-hour arguments, with a line forming to get inside after the court opened in the morning. Hundreds of people viewed the arguments on a YouTube livestream.
Lawyers for a group of TikTok creators also spoke at the hearing. TikTok is paying the legal fees for the group, which includes a rancher, a skin care entrepreneur and a promoter of biblical literacy. The creators, in an echo of a similar lawsuit from 2020, have argued that a potential ban will violate their First Amendment rights and that alternate social platforms like Instagram lack “TikTok’s novel way of hosting, curating and disseminating speech.”
“The ban sets a dangerous precedent for the government telling us how and with who we can communicate,” Talia Cadet, one of the plaintiffs in the case, told a group of reporters after the hearing. “I can’t stand for that, which is why I’m a part of this lawsuit.”
The case has attracted tremendous interest from free speech groups, academics, human rights groups and policymakers. The Electronic Frontier Foundation, a group of constitutional law professors and racial and social justice nonprofits like the South Asian Legal Defense Fund have filed amicus briefs in support of TikTok. A group of former national security officials, 21 states and Ajit V. Pai, the former chairman of the Federal Communications Commission, are among those who have filed briefs in support of the government.
The concerns among lawmakers and intelligence officials are at odds with how the American public views TikTok. Only 32 percent of Americans support a ban of TikTok, down from 50 percent in March 2023, according to a recent survey from the Pew Research Center.
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