TikTok’s future in the US hangs in the balance in federal court

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TikTok will try to convince a federal court on Monday that a law requiring the video-sharing app to divest from Chinese owners or be banned in the United States is unconstitutional.

The fate of Americans’ access to TikTok has become a major political topic in the country, with Republican presidential candidate Donald Trump opposing any ban on the wildly popular app.

Democratic President Joe Biden, whose Vice President Kamala Harris is running against Trump, signed a bill that gives TikTok until January to end Chinese ownership deals or be barred from the U.S. market.

TikTok’s parent company, ByteDance, has said it has no plans to sell TikTok, leaving the app’s only option for survival to be a legal challenge based on U.S. free speech guarantees.

A ban would likely provoke a strong response from the Chinese government and further strain U.S.-China relations.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments from representatives of TikTok, ByteDance and a group of users.

They will primarily argue that the bill violates the right to freedom of speech.

The justices will decide the case in the coming weeks or months. Whatever the decision, the case will likely go to the U.S. Supreme Court.

“Let there be no doubt: the bill will force TikTok to shut down by January 19, 2025,” TikTok’s appeal stated, “silencing those who use the platform to communicate in ways that cannot be replicated elsewhere.”

TikTok also argued that even if a divestment were possible, the app “would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user.”

TikTok says “the Constitution is on our side” and is pushing for a ruling that will benefit the app and its 170 million American users.

The US government responds that the law is about national security, not free speech, and that ByteDance cannot rely on First Amendment rights in the United States.

“Given TikTok’s broad reach in the United States, China’s ability to use TikTok’s features to advance its overriding goal of undermining U.S. interests creates a national security risk of enormous depth and scope,” the U.S. Department of Justice wrote in its filing.

The United States says ByteDance can and will comply with Chinese government demands for data on American users or bow to pressure from the Chinese government to censor or promote content on the platform.

TikTok first came under scrutiny from former President Trump’s administration, which unsuccessfully tried to ban the app.

Those efforts were halted when a federal judge temporarily blocked Trump’s actions, citing, among other things, potential infringement on free speech rights.

Trump has since changed his stance.

“Anyone who wants to save TikTok in America, vote for Trump,” he said in a video post last week.

As a measure of the app’s popularity, Biden’s re-election campaign launched a TikTok account earlier this year.

Biden has since dropped his re-election bid, but Harris, who is running to replace him, is also on the app, using social media as a means to connect with younger voters.

The new initiative signed by Biden aims to overcome previous legal hurdles that Trump has faced, but some experts say the U.S. Supreme Court will have a hard time allowing national security concerns to trump free speech protections.

As University of Richmond Law School Professor Carl Tobias said, most of the U.S. side’s national security arguments are classified, which “makes it difficult to try to evaluate them.”

“However, the U.S. Supreme Court has generally been very cautious about accepting national security arguments when government regulations restrict First Amendment rights, particularly those related to the internet,” he added.

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