TikTok faced sharp questions from a US appeals court on Monday as the company struggles to stop a law that would force China-based ByteDance to sell the video-sharing app by January 19 or face a complete ban.
A TikTok lawyer argued before a three-judge panel that The law, signed by President Joe Biden in April, This was a violation of the First Amendment.
“The legislation that is before this court is unprecedented, and its impact will be staggering,” TikTok's outside counsel, Andrew Pincus, said during the closely watched hearing.
“For the first time in history, Congress has targeted a prominent American speaker and banned his speech and the speech of 170 million Americans,” Pincus said.
Meanwhile, the federal government has pressed ahead with its argument, saying that manipulation of the app by the Chinese government could pose an unacceptable risk to national security.
TikTok and the DOJ, headed by CEO Shaw Chew, have asked the US Court of Appeals for the District of Columbia to make a decision by December 6.
The two-hour hearing, which also included testimony from TikTok creators who said the ban would harm their livelihoods, ended without a clear indication of what kind of ruling the panel would deliver.
However, legal experts told The Post that the judge did not appear to agree with key elements of TikTok’s position.
At one point, Judge Sri Srinivasan pushed back against TikTok's Pincus, saying the case hinged on the app's China-based ownership. He raised a hypothetical question about whether Congress would be allowed to ban a foreign adversary's ownership of a media outlet within the US in time of war.
Judge Neomi Rao, on the other hand, asserted that TikTok was relying on a “very strange framework” to overturn the law, essentially ignoring the fact that Congress “had actually passed a law” and instead treating it as a federal agency.
“I expected TikTok to face a tough challenge in this hearing, but the questions they were asked were more intense than I had anticipated,” said Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School. “The judges were very skeptical about whether the law should be subjected to strict scrutiny or moderate scrutiny.”
“These things are hard to predict, but after today’s arguments I would say that everybody believes there was a unanimous and very clear harm to TikTok,” Hurwitz said, adding that the justices “took the national security arguments very seriously.”
Gautam Hans, a law professor at Cornell University and associate director of the First Amendment Clinic, said the panel was “tough on TikTok.”
Hans said courts are generally deferential to Congress and wary of meddling too much in matters involving foreign affairs. He said the justices seemed focused on whether TikTok’s foreign ownership outweighed potential First Amendment concerns.
“The government attempted to minimize the speech interests in this case, and that certainly gave the panel some leverage,” Hans said.
Regardless of the panel’s decision, it’s expected the case will eventually go to the Supreme Court.
“The law requires that this court issue a decision soon, and it's hard to imagine that the losing side won't seek review in the Supreme Court before the deadline,” said Alan Morrison, a constitutional law expert at George Washington University Law School. “I believe the court will hear the case sometime this session.”
The Justice Department has argued that the divestment or ban bill is based on national security concerns related to Chinese ownership of TikTok.
During the hearing, the federal government raised the possibility that China could alter TikTok's algorithm for nefarious purposes.
DOJ attorney Daniel Tenney said, “It's ridiculous to suggest that with these two billion lines of code – that's 40 times larger than the entire Windows operating system, which is changed 1,000 times every day – we'd somehow figure out that they changed it.”
In documents filed in July, federal agencies alleged that TikTok was able to collect sensitive data from its users related to issues such as gun control and abortion, and pointed to a risk that Beijing could weaponize the app to suit its own purposes.
The federal government has also claimed that TikTok's parent company, Bytedance, is not eligible for First Amendment protections granted to U.S. companies.
Aside from First Amendment concerns, TikTok has argued that divestment isn’t possible within the bill’s limited timeframe.
Former Treasury Secretary Steven Mnuchin is among US investors who have said they would be interested in buying TikTok if it were available. As stated in the postMnuchin has spoken with potential partners about plans to rebuild TikTok's recommendation algorithm in the US.
The battle over TikTok's fate is playing out 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 a ban on TikTok but later changed his stance and argued that the bill threatened to transfer more power and market control to Instagram's parent company Meta and its boss Mark Zuckerberg.
post with wires
