WASHINGTON – Bipartisan efforts to ban TikTok nationwide will be scrutinized Monday by a federal appeals court tasked with weighing whether axing the social media giant’s U.S. presence runs afoul of the First Amendment.
The social media platform and a group of content creators have sued over a new law that could ban the app, placing free speech concerns front and center but also raising a handful of other issues.
On Monday morning, a three-judge federal appeals court panel in the nation’s capital will hear their challenges and decide whether to block the law from going into effect as scheduled on Jan. 19.
President Biden signed the legislation in April after it quickly passed Congress with bipartisan support, kicking into place the timeline for TikTok’s China-based parent company, ByteDance, to sell the platform or face a ban from U.S. app stores and networks.
ByteDance has contended divestment is practically impossible, meaning that the law effectively amounts to a nationwide ban of the video-sharing platform.
“The government asks this Court to bless the most sweeping speech restriction in this country’s history – a law that singles out and shutters a speech platform used by 170 million Americans,” the company wrote in court filings.
TikTok was pushed into the political spotlight after lawmakers in both parties raised fears that the app could be used by the Chinese Communist Party to gather information about Americans and spread misinformation.
At the time, FBI Director Christopher Wray also said the agency feared TikTok could be used to collect data for “traditional espionage operations,” while Brendan Carr, commissioner of the Federal Communications Commission, said he too would “welcome” a ban on TikTok due to the “unique threats” it poses.
Though few lawmakers sided with the platform, one of its loudest advocates was progressive Rep. Jamaal Bowman (D-N.Y.), who hosted a press conference with content creators outside the Capitol in March 2023. Reps. Mark Pocan (D-Wis.) and Robert Garcia (D-Calif.) also attended the event in support.
The heightened attention on TikTok led its CEO, Shou Zi Chew, to testify before Congress in a fiery, four-hour hearing last year. Though Chew insisted then that TikTok does not sell data to “any data broker,” critics said he dodged important questions about how the app uses collected data and its ties to China.
By signing the bill into law, Biden gave ByteDance just 270 days to sell TikTok or see it banned from U.S. app stores and other “internet hosting services.”
The battle is now headed to a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit. By random selection, the appeal will be heard by Judge Sri Srinivasan, appointed by former President Obama; Judge Neomi Rao, appointed by former President Trump; and Judge Douglas Ginsburg, appointed by former President Reagan.
First, the panel will hear from an attorney for TikTok, followed by the creators’ attorney and the Justice Department, which is defending the law.
The parties have asked for a decision by Dec. 6 to leave time for the losing side to file an emergency appeal at the Supreme Court before the law’s scheduled implementation the following month.
TikTok advances several constitutional arguments against the law, claiming it amounts to an improper taking in violation of the Fifth Amendment, singles out the company for punishment and runs afoul of the First Amendment’s free speech protections.
“The First Amendment requires this Court to examine such an extraordinary speech restriction with the utmost care and most exacting scrutiny,” the company wrote in court filings. “Yet Congress gave this Court almost nothing to review. Congress enacted no findings, so there is no way to know why majorities of the House and Senate decided to ban TikTok.”
The Biden administration dedicated much of its written response defending the law to explain national security concerns about TikTok, though significant portions of the brief were redacted from public view.
“Given TikTok’s broad reach within the United States, the capacity for China to use TikTok’s features to achieve its overarching objective to undermine American interests creates a national-security threat of immense depth and scale,” the Justice Department wrote.
The government contends the First Amendment doesn’t apply given the foreign ownership of TikTok’s parent company. But the government insists its national security concerns would still justify the legislation, even if constitutional protections did extend to the company.
Its defense is bolstered by many conservatives who have filed friend-of-the-court briefs. The list includes Jeff Sessions and Michael Mukasey, who respectively served as attorney general under Trump and former President George W. Bush.
Twenty-one sitting Republican state attorneys general also are backing the law, calling TikTok a “unique threat to American consumers.”
“TikTok asks this Court to declare that the peoples’ representatives are powerless at all levels of government to stop a hostile foreign power from spying on Americans. TikTok and the Chinese Communist Party cannot hide behind the First Amendment,” the coalition wrote in their brief.
First Amendment advocates and Libertarian interests like the Cato Institute, meanwhile, are backing TikTok, urging the appeals court to declare the law unconstitutional.
Jameel Jaffer, executive 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 hallmark of “repressive regimes.”
“We should be very wary of letting the practice take root here,” Jaffer said. “At the very least, the government should be required to demonstrate that the ban is actually necessary. It hasn’t done that, and it can’t.”
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