TikTok — an app used by 170 million Americans — now has its future in the hands of three judges. The company fought hard during oral arguments on Monday, which resulted in a judge expressing deep skepticism about TikTok’s case.
Lawyers for TikTok and a group of creators filed a lawsuit to block the law, commonly known as the “TikTok ban,” and presented their case to a three-judge panel of the D.C. Circuit Court of Appeals. While the bill seeks to divest the app from its Chinese owner ByteDance before a January 19 deadline, the company says the ultimatum is effectively a ban that would stifle the voice of TikTok and its creators , and does not unduly restrict the information Americans can obtain.
The Justice Department defended the law, saying it would take appropriate, targeted action against a company that poses a national security risk due to alleged contacts with foreign adversary governments. These judges—Obama-appointed Chief Justice Sri Srinivasan, Trump-appointed Justice Neomi Rao, and Reagan-appointed Justice Douglas Ginsburg Douglas Ginsburg) — appears to have asked TikTok lawyers more questions than the Justice Department. During the TikTok argument, Rao and Ginsburg appeared to squint their eyes or put their hands to the sides of their heads at times. Srinivasan played his cards most candidly, asking questions from both sides and nodding to both sides’ answers.
The D.C. Circuit is an appeals court that tends to handle cases involving federal agencies. In fact, the bill is an act of Congress and not an agency action, The judges didn’t go unnoticed. Rao told TikTok’s legal counsel, Andrew Pincus, that Congress “is not the EPA” and does not have to issue findings as an agency does – and that their findings are justified by the fact that they are able to pass laws. Later, Rao said many of Pincus’s arguments sounded like he wanted the panel to “treat Congress like an institution.”
The judge questioned the feasibility of requiring TikTok to take less action, such as the company revealing its data and content moderation practices. Rao and Srinivasan noted that this will depend on whether the government, which fears it is a pawn of secretive foreign adversaries, trusts the company.
It was only toward the end of the TikTok debate that Ginsburg pushed back against Pincus’s assertion that the law specifically targeted the company. Instead, Ginsburg said, it describes a class of companies controlled by foreign adversaries that may be subject to legal restrictions and One was singled out as urgently needed, following years of government negotiations that have failed to make progress.
Jeffrey Fisher, who represents a group of creator plaintiffs, said upholding the law could ultimately lead to other restrictions on Americans’ ability to produce for other media companies with foreign owners, ranging from Politico To Spotify to BBC. Fisher said the reasons given by the government for content manipulation – including concerns among some lawmakers about TikTok’s recommendation of content surrounding the war in Gaza – “taint the entire act.”
But the justices also questioned whether creators actually have a First Amendment interest in who owns TikTok. Judge Amy Coney Barrett’s latest thoughts Network selection Cases also emerged about how foreign ownership could change First Amendment calculations, with judges noting that the law involves foreign adversaries, not just broad foreign ownership.
Nonetheless, the judges also questioned the Justice Department’s Daniel Tenny on whether U.S. entity TikTok, Inc. has First Amendment rights. Tiny said that was true, but that in this case they were “incidental” because they were not targeted by the law.
The government has sought to present certain classified documents to the court while withholding them from TikTok out of concern that releasing them would further undermine national security risks the government fears. Those documents did not appear during about two hours of oral arguments. Instead, lawyers and judges are focused on the degree of First Amendment scrutiny that should apply to the case and how to assess the role of foreign owners in TikTok.
Kiera Spann, TikTok’s creator and a petitioner in the lawsuit, told reporters at a news conference after the argument that she found the platform to be “the least censored, most authentic source of information” and said she No such conversation was found. Jacob Huebert, president of the Liberal Justice Center, which represents independent petitioners BASED Politics edge Outside the court, he was “not surprised” that the judge “asked challenging questions to both sides,” including one to the Justice Department about how far the foreign ownership issue might go during the speech. Hubert called it a “mistake” to read too much into the number and type of questions.
An estimated 150 people packed the courtroom on Monday to hear the judge decide TikTok’s fate. Whatever the outcome, an appeal can be made to the Supreme Court – but with the January 19 divestment deadline approaching, time is running out.
