Under the legislation signed by President Joe Biden in April, TikTok would be banned across the country unless its owner, the Chinese tech company ByteDance, sells its stake in the video-streaming app. The measure stems from national security concerns that the Chinese government could access American user data through ByteDance.

TikTok told the court today that the law would have “staggering” outcomes for free speech in America if a ban were to take effect in January. But the company faced tough questions from judges who echoed lawmakers’ concerns about national security.

The company has support from free speech advocates who say banning TikTok would affect how large swaths of U.S. users express themselves. With roughly 170 million Americans on TikTok, the app has exploded from a site for videos clips of dancing and singing  into a place where users, especially younger generations, seek out information.

Courtroom battle

For roughly two hours this morning, lawyers for TikTok and the U.S. government fielded questions from judges who showed skepticism about whether the platform is entitled to display and moderate content with the same freedom as a U.S. company while its parent company is based in China.

TikTok attorney Andrew Pincus told the court today that the “unprecedented” law would have “staggering” outcomes for free speech in America. But judges were sympathetic to the government’s national security concerns.

Foreign entities aren’t guaranteed First Amendment rights, noted Judge Sri Srinivasan, and the government contends that “content manipulation,” or what is promoted by the TikTok algorithm, depends on the Chinese company. TikTok can “curate to its heart’s content,” Srinivasan said, but not while it’s “subject to Chinese control.”

The company insisted that Congress’s divestiture law unfairly singles out a specific U.S. speaker—the app’s American subsidiary, TikTok USA. Pincus urged the court to carefully consider whether a law can constitutionally target TikTok, especially given the volume of content that is created and shared by Americans on the app. 

Other publishers in the U.S. are owned by foreign entities and enjoy First Amendment protection , Pincus said. He cited Politico, which is owned by German media company Axel Springer, and Al Jazeera as examples. 

“But not by foreign adversaries,” Judge Neomi Rao responded.

But even if TikTok doesn’t have First Amendment protections due to its foreign ownership, millions of American creators on the platform do, said Jeffrey Fisher, who represented the TikTok users who are challenging the law in court. Again, the judges had questions: “What would be the creators’ interest in TikTok U.S. being owned by ByteDance?” Rao asked. 

Creators like the platform as it is, Fisher said, just like an American writer might like working with a particular publisher. A change in ownership or full-out ban would curb their ability to post content about everything from music to political theory to dinner recipes.

“It is a tradition in our country to protect those ideas, and that is what this act does not do,” he said. 

For the government, attorney Daniel Tenny underscored that the case is really about data security, not restricting speech. In response to questions from Rao, who flagged that the law singles out TikTok, Tenny said the government is fighting the flow of American user data to a Chinese entity, and how that data fuels TikTok’s algorithm—not any sort of content itself.

“The data stream is not expressive activity,” Tenny said.

Arguments against TikTok

In filings in the U.S. Court of Appeals in Washington, D.C., the Department of Justice argued that TikTok collects huge amounts of data about its users, including sensitive personal information like location and viewing habits. While there is no public evidence that TikTok has shared that data with the Chinese government, the government contends that there is a risk there, as long as ByteDance controls ownership. 

The DOJ also argues that the algorithm fueling TikTok’s hallmark For You page could be accessed by the Chinese government to control the content reaching Americans and thereby influence what they think and undermine U.S. national security. 

Their Justice Department’s brief cites a report about TikTok’s “heating” feature, which lets TikTok employees manually influence what content goes viral on the platform. Earlier this year, Republican lawmakers said they supported the bipartisan divestment law in part because they linked the app to growing sympathy toward Palestinians amid Israel’s attacks on Gaza.

The U.S government wrote in a July court filing that “nothing short of severing the ties between TikTok and China could suffice to mitigate the national-security threats posed by the application.”

TikTok’s position is that divestment from ByteDance is unnecessary, impractical, and ultimately unconstitutional. It flagged that the divestment law is effectively a ban on the app, given the technical and commercial challenges to finding a new owner for the app. 

Even if a divestiture was feasible, TikTok argued a U.S. only version would be an “island” cut off from global content, and it would still “at minimum require a data-sharing agreement with ByteDance.” And the Chinese government would not allow a forced divestment of TikTok’s algorithm, the filing adds. 

“Even if divestiture were feasible, 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,” TikTok wrote in a June court filing challenging the law. 

Various advocacy groups, such as the Electronic Frontier Foundation and Knight First Amendment Institute, asked the court to recognize First Amendment concerns with a TikTok ban. 

A nationwide ban would be “a radical departure from this country’s tradition of championing an open Internet,” the app added in its court filing.

But the government insists that, given its national security interest to curb influence from a geopolitical rival, the law is narrowly tailored enough to survive First Amendment scrutiny. 

What’s next

After a decision from the panel of D.C. judges, likely before December, the case is expected to go to the U.S. Supreme Court before the possible ban would take effect in January. If the law is ultimately upheld, app stores would be barred from making TikTok available to U.S. users. 

Update, Sept. 16, 2024: This article was updated with additional information from today’s court proceeding.