TikTok in Court: Dispute Over the Constitutionality of US Law

The Chinese-operated social media giant TikTok and the U.S. government faced off in court on Monday. At the center of the dispute is a soon-to-be-effective U.S. law that bans the use of TikTok in the United States unless the company is sold to an American owner. The law, known as the "Protecting Americans from Foreign Adversary Controlled Applications Act," prohibits foreign adversaries of the U.S. — including China, Russia, Iran, and North Korea — from controlling certain U.S. mobile applications. TikTok and a group of users filed a petition in the Court of Appeals in Washington, D.C., to prevent the enforcement of the law. The law mandates that TikTok's Chinese parent company ByteDance sell its U.S. operations to a U.S. company by January 19th, or face a nationwide ban. The court's decision is likely to lead to a petition to the U.S. Supreme Court. TikTok and the affected content creators argue that the law violates the U.S. Constitution by targeting them specifically and infringing on their protected freedom of speech. Andrew Pincus, TikTok's attorney, argued before a panel of three judges, "What it does is strip the rights of an American speaker." The Department of Justice attorney, Daniel Tenney, countered that the law is a legal decision by Congress to protect Americans' data from misuse by foreign adversaries. According to Tenney, the laws target the "covert manipulation of content," which is not considered protected speech. Chief Judge Sri Srinivasan, along with Judges Neomi Rao and Douglas Ginsburg, intensively questioned both sides. The central issue was whether TikTok's U.S. subsidiary, ultimately controlled by ByteDance, has a right to freedom of speech and what level of scrutiny should be applied to assess the constitutionality of the law. Judge Rao posed the crucial question to TikTok's attorney: "Does the First Amendment even apply?" Pincus argued that TikTok and its users are constitutionally protected speakers through the establishment of TikTok U.S. Jeffrey Fisher, attorney for the TikTok users, also supported the view that the law violates the First Amendment by restricting his clients' right to choose their publisher. Judge Ginsburg responded that TikTok is the company subjected to the law after two years of negotiations with the U.S. government failed to reach an agreement. Meanwhile, Judge Srinivasan expressed concerns that content curated by TikTok abroad but consumed by American recipients could still fall under the First Amendment. Tenney, on the other hand, emphasized that the law is warranted because the data collected by TikTok for commercial purposes could also be exploited by the Chinese state, potentially compromising U.S. security interests. The judges' decision could hinge on the level of scrutiny they apply in their review of the law.