TikTok and the US took their cases to the US Court of Appeals. The justices seemed skeptical. (Video)

TikTok and the U.S. government clashed in court Monday over the constitutionality of a looming U.S. law that, if it stands, would shut down the Chinese-owned social media app unless it is sold to an American owner.

The Act — Protecting Americans from Foreign Adversary Controlled Applications Act — prohibits U.S. foreign adversaries — China, Russia, Iran and North Korea — from controlling certain American mobile apps.

TikTok and a group of its users have asked the U.S. Court of Appeals in Washington to block the government from enforcing a law that requires TikTok’s Chinese parent company, ByteDance, to divest its U.S. operations to an American company by Jan. 19 or face a nationwide ban.

Regardless of how this case is decided, it is expected to be appealed by petition to the U.S. Supreme Court.

According to TikTok and a group of content creators who use the platform, the bill violates the United States Constitution because it singles them out and infringes on their free speech.

“What’s happening is that the rights of American internet users are being taken away,” TikTok lawyer Andrew Pincus said during a hearing before a three-judge panel.

Daniel Tenney, a Justice Department lawyer, disagreed.

In his view: The act was an important act of Congress to protect Americans’ data from abuse by foreign adversaries, covering only foreign “covert manipulation of content” that does not qualify as protected speech.

“If we call covert content manipulation ‘expression’ … that’s not the expression of Americans in America. That’s the expression of Chinese engineers in China,” Tenney said.

He added that the law was motivated by national security and had “nothing to do” with protecting free speech, and that selling TikTok to a U.S. entity would allow for continued expressive activity on the platform.

The justices, Chief Justice Sri Srinivasan, U.S. District Judge Neomi Rao and Senior District Judge Douglas Ginsburg, pressed both sides on whether TikTok’s U.S. unit, ultimately controlled by its Chinese parent company ByteDance, is entitled to free speech protections and whether a strict or intermediate level of scrutiny should be applied to assess the constitutionality of the law.

More stringent controls are applied when certain types of speech restrictions are imposed on U.S. persons and U.S. persons.

Judge Rao, appointed by former President Donald Trump, asked TikTok why the court would extend any constitutional protections to TikTok when the U.S. Supreme Court has ruled that foreigners speaking outside the U.S. have no such right.

“Does the First Amendment even apply?” Rao asked.

TikTok’s Pincus called both TikTok and its users constitutionally protected speakers and argued that TikTok gained constitutional protection by establishing its U.S. subsidiary, TikTok US.

Jeffrey Fisher, a lawyer representing TikTok users, argued that the law directly violates his clients’ First Amendment rights by depriving them of the right to choose a publisher.

“When that speech is delivered to the United States, and certainly when it is delivered in consultation with other Americans and propagated by other Americans, it will not be Chinese speech; it will be American speech, developed at most by a foreign company,” Pincus said.

Justice Ginsburg, a Reagan appointee, responded to TikTok’s claim that the law had singled out the platform.

“It’s a pretty limited approach because the statute only names one company,” Ginsburg said, adding that TikTok is an entity subject to the law after two years of negotiations with the U.S. government that failed to produce any agreement.

Judge Srinivasan, an Obama appointee, expressed concern that content created abroad by TikTok is still being received by American audiences who are entitled to First Amendment protections.

“What you’re doing is targeting selection,” he told Tenney, “… it’s just that the selection that’s being targeted is happening overseas.”

However, Tenney argued that because the law does not apply to TikTok users, the speech they receive through the app is not automatically protected by the First Amendment.

Tenney said the bill addresses a particular problem for the United States because the data TikTok collects for commercial purposes is also valuable to the Chinese government.

He said this data includes user behavior patterns, their contacts, the places they go, the people they interact with, and the types of content they are interested in. Foreign adversaries use this information to recruit Americans as intelligence agents or to deliver messages that support their own national security.

He added that under Chinese law, the data could be used to breach US security because TikTok must hand over its user data to Chinese officials if they request it.

The judges’ decision may depend on the degree of scrutiny they will apply when considering the bill.

Judge Rao asked TikTok why the court would apply the strictest standard to speech posted on TikTok, even if the platform enjoys First Amendment rights as a U.S. corporation.

Pincus reiterated TikTok’s claim that the law has flagged it and that strict controls apply in such cases. He said that in such cases, where a foreigner’s speech is restricted, U.S. courts have at most required a label explaining the alleged risk of the content.

Alexis Keenan is a legal reporter at Yahoo Finance. Follow Alexis on X @alexiskweed.

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