TikTok is under intense scrutiny in its effort to avoid a US ban, facing tough questions from a three-judge panel at the US Court of Appeals for the DC Circuit. The judges displayed skepticism towards TikTok’s argument that the ban, enacted by a law signed by President Joe Biden, violates its free speech rights. The US government contends that national security concerns justify the ban, pointing to potential manipulation of content by TikTok’s parent company, ByteDance Ltd., which is based in Beijing.
Bloomberg Intelligence analyst Matthew Schettenhelm remarked, “This argument did not go well for TikTok. There’s a real chance the DC Circuit upholds the law, which could force TikTok to make a last-second plea to the Supreme Court to avoid the ban by Jan. 19.” TikTok has indicated its intention to take the case to the Supreme Court if necessary. Both TikTok and the Justice Department have requested a ruling from the DC Circuit by Dec. 6, with the possibility of the full court’s review following.
The court session saw ByteDance, TikTok, and a group of its users arguing that the ban would violate the First Amendment rights of its 170 million US users. Chief Judge Sri Srinivasan challenged TikTok’s lawyer, Andrew Pincus, with a hypothetical scenario about media ownership during wartime, implying Congress might have the authority to impose such bans. Pincus suggested that any such law should undergo “strict scrutiny” to verify if it justifies infringing on constitutional rights.
Judge Neomi Rao, while questioning the US government’s stance, hinted at the need to differentiate between foreign ownership and adversarial foreign ownership. Notably, social media giants such as Google, Meta Platforms, and Snap, as well as Oracle Corp.—which provides hosting services to TikTok—stand to gain significantly if TikTok is banned.
The government argued that TikTok is incorporated in the US and potentially entitled to free-speech protection, but its activities, particularly the management of its recommendation engine and content moderation by ByteDance, are of concern. Daniel Tenny, representing the government, emphasized, “The expressive activity that the United States is targeting is the creation and maintenance of the recommendation engine and the content moderation by ByteDance. There are just reams of information that are going back to China.”
Michael Forde, a free-speech legal expert, noted that the judges were more focused on the US government’s right to regulate foreign adversaries than on First Amendment issues. The implications of this case are significant, with TikTok alleging that the ban would unjustly strip it of its platform in the US under what it calls the “divest-or-ban” law. The appellate panel is now weighing the adequacy of the government’s evidence and whether it can use classified information without sharing it with TikTok, which has called for a special master to review the secret documents.
For further reading, refer to the detailed report on Bloomberg Law.