TikTok faced tough questions from a U.S. appeals court on Monday as the company fights to block a law that will force China-based ByteDance to sell the video-sharing app by Jan. 19 or face an outright ban.
A lawyer for TikTok argued before a three-judge panel that the law, signed by President Joe Biden in April, was a violation of the First Amendment.
“The law before this court is unprecedented and its effect would be staggering,” TikTok’s outside counsel, Andrew Pincus, said during the closely watched hearing.
“For the first time in history, Congress has expressly targeted a specific speaker in the United States, banning his speech and that of 170 million Americans,” Pincus added.
Meanwhile, the feds doubled down on their argument that the risk of Chinese government tampering with the app poses an unacceptable risk to national security.
TikTok, led by CEO Shou Chew, and the Justice Department have asked the U.S. Court of Appeals for the District of Columbia Circuit to make a decision by Dec. 6.
The two-hour hearing, which also included testimony from TikTok creators who say a ban would harm their livelihoods, ended without a clear indication of how the panel would decide.
However, the justices did not appear to be convinced by key elements of TikTok’s position, legal experts told The Post.
At one point, Judge Sri Srinivasan counterattacked TikTok’s Pincus case by pointing out that the case hinged on the app’s ownership being in China. He raised the hypothetical question of whether Congress would be allowed to prohibit a foreign adversary from owning a media outlet inside the United States during a war.
Elsewhere, Judge Neomi Rao said TikTok relied on a “very strange framework” to overturn the law by essentially ignoring the fact that Congress “had actually passed a law” and instead treating it as if it were a federal agency.
“I expected TikTok to face an uphill battle at this hearing, but the questioning they faced was far more critical than anticipated,” said Gus Hurwitz, a senior scholar at the University of Pennsylvania’s Carey Law School. “The justices seemed fairly skeptical that the law merited strict, or even intermediate, scrutiny.”
“It’s hard to make predictions about these things, but after today’s argument, I would say that TikTok will most likely lose unanimously and very clearly,” Hurwitz added, noting that the justices “seemed to take the national security arguments very seriously.”
Gautam Hans, a law professor and associate director of the First Amendment Clinic at Cornell University, said the panel “came down hard on TikTok.”
Courts are typically deferential to Congress and wary of meddling too much in matters involving foreign relations, Hans said. The justices appeared to focus on whether TikTok’s foreign ownership overrode potential First Amendment concerns, he added.
“The government tried to downplay speech interests in this case, and that definitely won some traction with the panel,” Hans added.
Regardless of the panel’s decision, the case is widely expected to end up before the Supreme Court.
“The law requires this court to decide quickly, and it’s hard to imagine the loser not seeking Supreme Court review before the deadline,” said Alan Morrison, a constitutional law expert at George Washington University Law School. “I think the court will hear the case at some point during this term.”
The Justice Department has argued that the proposed divestment or ban bill is based on pressing national security concerns related to Chinese ownership of TikTok.
During the hearing, the feds raised the possibility that China could alter TikTok’s algorithm for nefarious purposes.
“It’s ridiculous to suggest that with these two billion lines of code (40 times larger than the entire Windows operating system, modified 1,000 times a day) that we’re somehow going to detect that it’s been modified,” said Justice Department attorney Daniel Tenny.
In July filings, the feds alleged that TikTok was able to collect sensitive data related to issues like gun control and abortion from its users and cited risks that Beijing could weaponize the app to suit its own ends.
The feds also claim that ByteDance, TikTok’s parent company, is not eligible for the same First Amendment protections afforded to U.S. companies.
In addition to First Amendment concerns, TikTok has argued that a divestment is not possible within the bill’s limited timeframe.
Former Treasury Secretary Steven Mnuchin is among the U.S. investors who said they would be interested in buying TikTok if it were available. As The Post reported, Mnuchin has spoken with potential partners about a plan to rebuild TikTok’s recommendation algorithm in the United States.
The fight over the fate of TikTok is taking place against the backdrop of the 2024 presidential election. Both Donald Trump and Kamala Harris are active on the platform.
The Biden-Harris administration signed the divestment bill into law.
Trump initially supported banning TikTok but has since changed his stance, arguing that the bill risked transferring more power and market control to Instagram’s parent company, Meta, and its boss, Mark Zuckerberg.
With pole cables
