TikTok Challenges US Law Banning Platform in Federal Court, Citing First Amendment Violations

TikTok appeared in federal court on Monday to argue that a US law banning the platform in just a few months was unconstitutional. The Justice Department said the move was important to protect the country’s security from the famous social media company.

Lawyers and content creators from both sides appeared in a federal appeals court in Washington challenging a law that forces TikTok and its China-based parent company ByteDance to sever ties by mid-January or lose one of the world’s largest markets.

TikTok Inc., the American branch of TikTok, has misconstrued the law and violated the First Amendment, as Andrew Pincus, a veteran lawyer representing both companies, said in court. Another lawyer for the author challenging the law said it violates American film rights and involves American people, and media supporters such as Politico or Al Jazeera foreign, starting with the article.

“This court’s finding of contemporary law is obsolete and its effect will be shocking,” Pincus said.

The law, signed by President Joe Biden in April, was a result of a years-long crackdown on the short-form video-sharing app, which the government views as a national security threat because of its ties to China.

The US has expressed concern about TikTok collecting a lot of user data, including sensitive information on viewing habits, which could end up in the hands of the Chinese government under pressure. The US also said that the proprietary algorithm that controls what users see on the app could be manipulated by Chinese authorities, who could use it to shape content on the platform in a way that is difficult to detect.

Justice Department attorney Daniel Tenney said in court that many companies use that data to create videos for commercial purposes, such as targeted advertising or to serve users’ interests.

“The problem is that that same data is also very valuable to a foreign adversary trying to compromise the security of the United States,” he said.

Pincus, TikTok’s lawyer, said Congress should have sided with disclosing any potential propaganda on the platform, rather than following a divestment or ban approach, which both companies say would only lead to a ban. He also said that statements by lawmakers before the law was passed showed they were motivated by the propaganda taking place on TikTok, namely the imbalance between pro-Palestinian content and pro-Israel content on the platform during the war in Gaza.

But the panel, which includes two Republican and one Democrat-appointed judge, expressed some skepticism and pressed lawyers for the TikTok side on whether they thought the government had any ability to impose controls on a major media company in a hostile country that is controlled by a foreign entity. The judges also asked whether the reasoning presented would apply in cases where the U.S. is at war.

Judge Neomi Rao, appointed by former US President Donald Trump, said creators suing the law could continue to speak on TikTok if they sold the company or put their content on another platform. But TikTok lawyer Jeffrey Fisher countered, saying they are not “interchangeable mediums” because it is a different kind and allows creators to reach different kinds of audiences.

The panel also pressed on in the second part of the hearing on First Amendment challenges to the law.

Sri Srinivasan, a judge appointed by former President Barack Obama, said efforts to prevent content manipulation through government action ring alarm bells and impact the speech of people on TikTok. Home Ministry lawyer Tenney said the law does not target TikTok users or creators only indirectly.

TikTok has repeatedly said it does not share U.S. users’ data with the Chinese government, and the questions raised by the government have never been proven. TikTok and ByteDance said in their lawsuit that divestment is impossible. Even if it did happen, they say TikTok would shrink to what it was before because it would be stripped of its powerful technology.

Though the government’s basic rationale for the law is public, a significant portion of its court filing involves redacted and publicly hidden data.

The Justice Department said in a revised statement in late July that TikTok took instructions from the Chinese government about content on its platform, but when and why did these incidents occur? TikTok and Baidu acted on Chinese government demands to “censor content out of China,” senior US intelligence official Casey Blackburn said in a legal statement.

Blackburn said the risk of this happening “could be there,” though the intelligence community had “no information” that something like this had happened on TikTok in the US. The US has said it should not wait until something deadly happens before responding to a threat, but the companies said the government could have taken a more tailored approach to address its concerns.