TikTok launches fight for its life in court

TikTok heads to court Monday morning to fight for its survival in the U.S. — in a political environment sharply changed from just five months ago, when Congress overwhelmingly voted to ban or force a sale of the app.

In a historically unusual targeting of a single company for its Chinese ties, the TikTok law passed in April with a wave of support from both Democrats and Republicans before being signed by President Joe Biden.

Since then, TikTok and its Beijing-based parent company ByteDance have sued to block the law, as have other groups, saying it violates users’ First Amendment rights and that the government failed to provide sufficient proof of the app posing a security threat. Monday’s oral arguments in the D.C. Circuit Court of Appeals will be the first chance for federal judges to weigh those claims.

The law initially triggered predictions that TikTok would become effectively an outcast in Washington. Some Hill offices reportedly considered targeting lobbying firms associated with the company for backlash , and in May, House Majority Leader Steve Scalise ’s (R-La.) office successfully pressured the Washington-based tech lobbying group NetChoice to drop TikTok from its membership rolls.

But instead of being exiled, TikTok has been embraced as a mainstream political communications tool, with both presidential tickets now on TikTok, and their parties featuring the app’s creators prominently at their conventions. Political content and memes flow outward from TikTok to other social media platforms, and are often boosted by the candidates.

“It has grown enormously, to the point where it’s among the most dominant forms of communication in the election,” said James Haggerty, a communications consultant and attorney who has worked on First Amendment issues. “Even as the government is trying to ban Tiktok, those who run the government, that is politicians, are squeezing every last drop out of it.”

This summer, both tickets leaned into TikTok’s power to capture the youth vote. Trump joined in June. After Vice President Kamala Harris became the Democratic nominee in August, her team rebranded the Biden campaign’s TikTok account, ramped up posting to multiple times a day, and launched a second personal account.

For the first time, the Democratic National Convention gave credentials to over 200 creators, and the Republican National Convention to more than 70 creators, offering them access and perks rivaling traditional press. Five creators, all active on TikTok, scored coveted speaking roles at the DNC podium, part of the party’s strategy to reach nontraditional audiences.

Its popularity doesn’t necessarily change the trajectory of the case, however.

On Monday, three judges will question the Department of Justice on the government’s national security concerns that prompted the law, and the company on its argument that a potential ban would be an unconstitutional suppression of free speech. Obama appointee Sri Srinivasan, Trump appointee Neomi Rao, and Reagan appointee Douglas Ginsburg will decide the case. Both sides requested a ruling by Dec. 6.

The hearing consolidates three separate suits — one filed by TikTok and ByteDance, another by a group of eight content creators and the last on behalf of the media nonprofit BASED Politics. All are asking the court to declare the legislation unconstitutional and to prevent Attorney General Merrick Garland from enforcing it.

Even after Monday’s arguments, it will likely still be difficult to predict the course of the case, in part because of the secrecy surrounding the government's security claims. The DOJ submitted classified materials that are central to the case. Neither TikTok nor the public has been able to view them, and even if the judges are ultimately convinced by that evidence, they can’t openly talk about it in court or write all the relevant details in their opinion.

“This is a pretty favorable panel to the government,” University of Minnesota law professor Alan Rozenshtein said, cautioning that “this argument because of this classified information wildcard is going to be even harder to process, in the sense of predicting what it means for TikTok in this case.”

The case is expected to proceed to the Supreme Court, so Monday’s judges are unlikely to have the final word, said University of Richmond law professor Carl Tobias. “The Supreme Court will be tempted to take it,” he said. “It has such enormous implications.”

Under the law, TikTok has until Jan. 19 to find a suitable buyer. If the case ends up in the Supreme Court, that deadline would likely expire before the court could deliver an opinion on whether the law is constitutional. But it could also grant TikTok a stay, pausing the law while it considers the case.

In the meantime, a president Trump or Harris could ask Congress to repeal or modify the law, though the bill passed with overwhelming support among both parties.

If the law holds, there is little a new president could do to save TikTok unilaterally. Even in the event that Trump — who vowed to “never ban TikTok” after joining the platform in June — wins the election and directs his attorney general to not enforce the law, observers predicted that companies running app stores and internet service providers would still be reluctant to take on the risk of hosting TikTok.

“I think it would be insane for a general counsel to sign off on that because you're still violating the law, and Trump is incredibly fickle, and it's just like, ‘why would you do this?,’" said Rozenshtein.

TikTok, which has long banned political ads, seems to be recognizing its role as a growing destination for news, advocacy, and campaigning. Last week, the company revealed several changes to improve information about the upcoming election on the app. It plans to launch a new landing page explaining how elections work, roll out in-feed media literacy videos, and tighten security requirements for verified political and government accounts.