China-owned TikTok argued before a seemingly skeptical three-judge panel in Washington Monday that an impending ban on the popular social media platform’s operations in the United States runs afoul of the First Amendment.
The ban, approved by Congress and signed by President Biden in April, goes into effect Jan. 19 if ByteDance, the owner of TikTok, has not divested itself of the social media company that has 170 million American users.
No matter how the judges from the D.C. Circuit Court of Appeals rule, it’s expected the case will eventually be appealed to the Supreme Court.
The law at issue, the Protecting Americans From Foreign Adversary Controlled Applications Act, won bipartisan support in Congress from lawmakers concerned that TikTok poses a national security threat by collecting users’ data.
TikTok and ByteDance sued the federal government in May and asked the federal appeals court — which expedited the case — for an injunction to block the ban.
At least two of the three judges during Monday’s arguments questioned the company’s claims of First Amendment protections.
Judge Neomi Rao, a Trump appointee, said the law does not aim to ban expressive activity, but is looking at foreign ownership. She questioned why the court should second guess Congress, “the first branch of government.”
And Judge Douglas H. Ginsburg, a Reagan appointee, pushed back on lawyers’ referencing the company simply as foreign-controlled.
“Instead of saying foreign control, let’s say adversary control,” he told counsel. “Think of it as adversary control.”
Andrew John Pincus, the lawyer representing TikTok, told the judges that the law is unprecedented and a ban would have a “staggering” effect.
He said the government is trying to control content manipulation.
“This law imposes an extraordinary speech regulation,” he said. “It is an unusual law, an unprecedented law … that targets one speaker.”
Eight TikTok users have also challenged the law, arguing in court records that they use TikTok to “create, publish, view, interact with, and share videos.”
One of the TikTok users resides in Texas, where he has more than 400,000 followers and uses his account to educate them on agricultural topics, while making income from it.
Jeffrey Fisher, who represented the TikTok users, said they have a First Amendment interest and that his clients could not just go to another platform because “there is a whole different audience” and that “you have whole different tools available.”
“We have a fundamental interest in being able to work with the publisher and editor of our choice even if it is a foreign editor,” he said.
The Justice Department has claimed that TikTok took direction about content on its platform from the Chinese government, according to The Associated Press.
Daniel Tenny, a Justice Department lawyer defending the law, said that TikTok gathers users’ information to decide what content to present to the users in order to keep them looking at the app. He said the data collection is commercially useful to the platform.
“The problem is that the same data is extremely valuable to a foreign adversary,” he said. “It poses a grave national security risk.”
As to the TikTok users, Mr. Tenny acknowledged their speech could be affected by the law.
“Their speech may be affected,” he said. “That really is an indirect effect of what is going on here.”
The case is TikTok Inc., et al v. Merrick Garland.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.