Court of Appeal to Consider Appeal Against TikTok Sale Verdict

(TNS) — A federal appeals court will hear oral arguments Monday in TikTok’s challenge to a law mandating the sale or ban of its app in the U.S. The case could determine Congress’s ability to regulate the company and other platforms on national security or other grounds.

TikTok and its Chinese parent company, ByteDance, and a group of their users are planning to appeal to a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, arguing that the law undermines their free speech rights and is unconstitutional in the context of the social media platform.

The law, passed by Congress earlier this year, mandates that TikTok’s U.S. subsidiary be stripped of Chinese ownership or blocked in the United States. TikTok says divesting its U.S. operations is “technologically, commercially, and legally impracticable.”

The Biden administration has argued in this case that interference with the company’s property rights is justified due to the risks associated with the potential use by the Chinese government of data collected on the platform and access to Americans’ mobile phones.

Monday’s discussions come at the intersection of long-standing concerns about Chinese ownership of a major social media platform and impasses in Congress and the courts over thorny issues of online free speech.

Georgetown Law Center professor Anupam Chander called the case a “dive into the deep end” at the intersection of national security and First Amendment rights.

Chander, who served as counsel on an amicus curiae brief supporting TikTok, said the case could force the District of Columbia Court of Appeals and ultimately the Supreme Court to address the question of whether a law restricting TikTok’s ability to use its algorithm violates the company’s free speech rights.

The case could have serious implications for Congress’s ability to regulate social media. Congressional efforts to change the current protections for social media companies, commonly known as Section 230, have stalled.

Chander said the ruling in Tiktok’s favor means that “First Amendment issues could be exacerbated if Tiktok’s algorithmic promotion is found to be disrupted by this statute.”

“There is no doubt that the District of Columbia has a clear case to make,” Chander said.

TikTok argued in court documents that “even if the sale were possible, TikTok in the United States would be reduced to a shadow of its former glory, stripped of its innovative and expressive technology that tailors content to each user.”

TikTok said it had offered the U.S. government unprecedented control over its operations in the U.S., including a potential “shutdown” option to block the service in America, but the federal government withdrew from the deal.

TikTok also criticized Congress for passing the law despite a lack of documented evidence of the platform’s alleged dangers, saying lawmakers relied on a single commission report and a handful of statements from lawmakers.

“This law radically departs from the country’s tradition of championing an open internet and sets a dangerous precedent that allows political forces to target an unpopular speech platform and force it to sell or shut down,” the company said in a statement.

The Biden administration has argued in the case that the law does not actually restrict the company’s or its users’ free speech, but rather the vast amount of data it collects that could be used by the Chinese government.

In publicly available excerpts from the partially redacted report, the Biden administration also cited news reports that employees of TikTok’s parent company had been spying on American journalists reporting on the company’s activities.

“The bill is intended to address national security concerns unique to TikTok’s ties to a hostile foreign power, not to suppress protected free speech,” the government argued.

The Biden administration has argued that courts have upheld similar restrictions on foreign ownership of radio licenses, banks and domestically operated dams, reservoirs and other infrastructure projects.

“The Act does not apply to First Amendment-protected activity because neither data collection nor algorithm manipulation by a foreign power is a protected activity,” the Biden administration argued.

Former President Donald Trump tried to ban the platform in August 2020 with an executive order that was overturned by federal courts. Congress previously passed a law banning TikTok from being installed on government-owned devices.

Before Congress passed the latest law, the Justice Department raised numerous concerns, including that TikTok collects sensitive information about Americans, that the social media company could serve as a platform for China to influence U.S. policy and that Chinese law requires the company to share its data with the government.

Congress weighs

More than forty members of Congress defended the bill in their own briefs on the matter. The House of Representatives Committee on the Chinese Communist Party Chairman John R. Moolenaar, Republican of Michigan, and Ranking Member Raja Krishnamoorthi, Democrat of Illinois, led:

The members argue that Congress had every right to restrict ownership of TikTok, citing its authority over foreign relations and interstate commerce, and that Congress has been investigating threats posed by the Chinese government for years.

“Congress has long recognized that web applications can be a vector for foreign adversaries to hack into Americans’ devices and to conduct surveillance, covert influence, and repression,” the letter reads.

Krishnamoorthi said in an interview that he was confident the courts would uphold the law and dismissed TikTok’s free speech claims. “There is no First Amendment right that could harm our national security. There is no First Amendment right that could fundamentally undermine our ability to protect ourselves,” Krishnamoorthi said.

Other members of Congress have also pushed back on free speech grounds, including Senator Josh Hawley, Republican of Missouri, who sponsored legislation to ban the platform from being used on government devices.

“I just think the idea that TikTok has a First Amendment right to spy on Americans and use their platform as a back door without anyone’s consent on their phones is a First Amendment right, I mean, it’s crazy. It’s absolutely crazy,” Hawley said.

Hawley said it could be a “very significant case in terms of presidential merit” because the Supreme Court has already grappled with the right to free speech on social media platforms in other recent cases.

The Supreme Court has avoided issuing a final ruling in two cases earlier this year that challenged state laws in Texas and Florida that seek to regulate social media companies and prevent them from discriminating against users based on their views.

But Chander said that “reading the tea leaves” of six-judge panel leader Elena Kagan’s opinion in those cases, the court seemed open to ruling that a social media platform that uses an algorithm could be considered free speech.