TikTok grilled as it argues for survival in court

A panel of federal judges grilled both TikTok and the Justice Department on Monday, wrestling with the question of whether it is constitutional to force the popular social media app to sever ties with China to avoid a U.S. ban.

The court is set to rule on a historically unusual law , passed with strong bipartisan support in April, demanding that TikTok shed its Chinese ownership by Jan. 19, or be subject to a ban in the U.S.

TikTok and a group of content creators are challenging the law, saying it violates the free speech rights of more than 170 million American users and that Congress failed to consider less drastic measures. The DOJ says the law serves crucial national security interests, and only divestment can address those concerns.

During two hours of questioning, a three-judge panel homed in on China’s current influence over TikTok and two future risks: the possibility of China demanding access to sensitive U.S. user data or altering the app’s recommendation algorithms to spread propaganda.

The judges examined whether TikTok’s relationship with Beijing-based ByteDance could undermine its claim to First Amendment protections, which foreign entities operating abroad do not enjoy — and to what extent TikTok’s content curation occurs in China versus the U.S.

With other tech giants such as Google and Apple under fire for alleged monopolistic practices in federal courts, the TikTok case offers a different window into the complexity of controlling major tech platforms in a globalized era.

While the company’s lawyers and advocates mounted arguments about First Amendment protections for a popular online video-hosting platform, its overseas ownership raises untested questions about whether those freedoms can, or should, constrain Congress in the face of possible national security threats.

In a typical situation — a company without foreign control — introducing content manipulation as an issue “sets off First Amendment alarm bells,” said Chief Judge Sri Srinivasan of the D.C. Circuit and an Obama appointee.

But Monday’s case is hardly typical. Another judge, Reagan appointee Douglas Ginsburg, told the courtroom, “Certainly there's no precedent, no case going either way involving a designated adversary nation. Truly, that might have something to do with the level of scrutiny that a court should apply to a judgment by the Congress about a foreign power.”

Ginsburg and Srinivasan heard the case, alongside Trump appointee Neomi Rao. Both TikTok and DOJ have requested a ruling by Dec. 6 — after which, the losing side can appeal it to the full panel of the federal appeals court or, as expected, to the Supreme Court.

Legal experts said that it would be difficult to predict how the court might rule based on their line of questioning Monday. The panel was tough on TikTok, but the judges didn’t let the government off the hook either.

“I've listened to a lot of oral arguments, and I usually have a pretty good sense of who's going to win,” Alan Morrison, a dean at the George Washington University Law School and constitutional law expert, said. “But I don't have a sense here because they seemed unhappy with everybody.”

The hearing consolidated 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.

Jacob Huebert, an attorney for BASED Politics, which publishes free market content on platforms including TikTok, said after the arguments: “There were challenging questions for both sides, so there’s no telling how any given judge is going to come out on this. The government certainly seemed to be challenged when posed with the hypothetical of a law that would suppress foreign-owned platforms in general across the board, and whether that would be okay.”

That wasn’t the only hypothetical the judges threw at the attorneys, as they attempted to draw parallels to previous cases and situations. Srinivasan repeatedly asked about a potential war breaking out between the U.S. and China, including whether Congress would have more leeway to ban ownership of a major media outlet by a foreign country in that scenario.

They referenced previous cases — such as Lamont v. Postmaster General in which the Supreme Court upheld Americans’ rights to receive mail from abroad that the government considered communist propaganda. Judges also brought in the Supreme Court’s landmark decisions on social media firms and online speech this summer.

At a different point, Rao suggested that it seemed as though TikTok wanted the court to remand the case to Congress for further findings.

“Congress doesn't legislate all the time, but here they did. They actually passed a law, and many of your arguments want us to treat them like they're an agency,” Rao said to the company’s attorney, Andrew Pincus. “It's a very strange framework for thinking about our first branch of government.”

Pincus responded that the law itself was unusual for trying to set broader standards for a group of companies controlled by adversarial powers, while specifically targeting TikTok for more immediate action.