Topline
A panel of federal judges will hear TikTok’s case against the federal government’s threat to ban the app on Monday, as both sides face a fierce court battle over the app’s fate that’s expected to go to the Supreme Court before a ban or mandatory sale takes effect in January.
TikTok content creators gather outside the Capitol to voice their opposition to a potential ban on … [+]
Key Facts
The U.S. Court of Appeals for the D.C. Circuit will hear arguments Monday morning in TikTok’s lawsuit challenging the constitutionality of the Protecting Americans From Foreign Adversary Controlled Applications Act, which gave TikTok 270 days to divest from China-based parent company ByteDance or else be banned from app stores.
The law is set to ban TikTok by January 19 unless a court strikes down the legislation before then, with TikTok arguing that banning the app is a violation of its First Amendment rights.
The hearing Monday will include multiple lawsuits over the ban, including the litigation brought by TikTok itself and another brought by several TikTok creators.
The federal government argued to the court that ByteDance’s Chinese ownership “creates a national-security threat of immense depth and scale,” though much of the government’s specific intelligence for why there’s a national security threat was redacted in its brief and will not be made public.
While the law allows TikTok to remain legal in the U.S. if it divests from ByteDance, the company said in its brief to the court that is “not possible technologically, commercially, or legally—especially within the Act’s arbitrary 270-day timeline.”
If TikTok did separate from ByteDance, the company argued, “TikTok in the United States would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user.”
What To Watch For
Both sides have asked the court to issue a ruling on the ban’s legality by Dec. 6, according to Reuters. However the court rules, the losing side is expected to appeal the case to the Supreme Court, who would then issue a final ruling on whether or not the ban could take effect in January.
What We Don’t Know
How the court will rule. The panel of appeals judges slated to hear the case—appointed by Presidents Barack Obama, Ronald Reagan and Donald Trump—is “a pretty favorable panel to the government,” University of Minnesota law professor Alan Rozenshtein told Politico, though multiple courts have sided in TikTok’s favor when hearing lawsuits over its legality in the past. The fact so much of the government’s evidence for why TikTok should be banned remains under seal also makes it hard to gauge how the case will play out, Rozenshtein noted, with only the court and the government—not even TikTok—knowing what intelligence the government has in favor of a ban.
Key Background
President Joe Biden signed the TikTok ban or forced sale into law in April after Congress passed the legislation in bipartisan votes. The law came amid longstanding concerns by the government about national security issues involving TikTok, with federal employees barred from having the app on government-owned phones, and after Montana became the first state to ban the app on a statewide basis. (A court later blocked that ban.) Forbes has reported on numerous concerns involving TikTok, including the company spying on journalists, tracking “sensitive” words, promoting Chinese propaganda criticizing U.S. politicians and mishandling user data. TikTok has denied wrongdoing or blamed actions on individual bad actors within the company, and has denied having any links to the Chinese government. The law banning TikTok came after Trump tried to ban the app via executive order when he was president in 2020, but that was later blocked in court.
Crucial Quote
“The serious national-security threat posed by TikTok is real,” the government alleges in its lawsuit, claiming TikTok is wrong in its claims about First Amendment violations because “the statute is aimed at national-security concerns unique to TikTok’s connection to a hostile foreign power, not at any suppression of protected speech.” The government also argues the law doesn’t violate creators’ rights because they can still post videos on places other than TikTok, alleging, “Any preference these petitioners may have for using TikTok over those other platforms does not create a constitutional right to TikTok—nor could their preference overcome the national-security interests supporting the Act.”
Chief Critic
TikTok alleged the government has created a “two-tiered speech regime” through its ban on TikTok, “with one set of rules for one named platform, and another set of rules for everyone else.” If the government shuts down TikTok in the U.S., the company argued, it would be “based not on any proof of a compelling interest, but on speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means.”
Big Number
170 million. That’s how many TikTok users are in the U.S., according to the company in its court brief. A study commissioned by TikTok and released in March claims TikTok helped small businesses boost their sales by $14.7 billion in 2023, based on a survey of 1,050 small businesses and 7,500 consumers. The company also claims it contributed $8.5 billion to the U.S.’s GDP in 2022 through its own operations.
Contra
The government arguing against TikTok comes even as both presidential candidates have been reliant on the app to reach voters—including Vice President Kamala Harris, whose campaign has embraced memes and TikTok trends even as she’s part of the Biden administration now arguing in favor of banning the app. Harris’ campaign had 4.4 million followers on her campaign account @kamalahq as of Monday morning and Harris’ personal account had 5.4 million followers, while former President Donald Trump’s personal account had 11.1 million followers and his campaign account has 1.2 million followers.
