“Never before has Congress expressly singled out and shut down a specific speech forum,” TikTok said in legal filings. “Never before has Congress silenced so much speech in a single act.”
That argument went before the U.S. Court of Appeals for the District of Columbia Circuit on Monday, where lawyers for TikTok and its China-based parent, ByteDance, faced attorneys from the Department of Justice. The case combines several lawsuits challenging a law enacted earlier this year. It demands that ByteDance sell TikTok to a non-Chinese owner before January 19, 2025, or see the service forced to shut down in the United States.
The law and the challenge
Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act in April as part of a sprawling foreign aid bill, with broad bipartisan support. It set a 270-day deadline. TikTok objected at once, calling the measure a First Amendment violation. Challengers say it suppresses the speech of the platform’s estimated 170 million U.S. users.
TikTok also argues a sale cannot work in practice. A forced sale to a non-Chinese company would leave the thousands of Chinese developers who built and maintain the app unable to keep working on it. And Chinese law bars ByteDance from selling the recommendation algorithm, which the company calls the heart of the service’s appeal.
Users have joined the suit. Jacob Huebert, president of the Liberty Justice Center, filed one of the original cases for Based Politics, a conservative-libertarian media group. “With TikTok, they can reach an audience of young people with those ideas that they can’t reach anywhere else,” he told VOA. Brian Firebaugh, a Texas cattle rancher whose @cattleguy account has more than 450,000 followers, is also a plaintiff. He has said TikTok drives the overwhelming majority of his sales, and he has called the effort to block the ban “small-business owners and some of the biggest creators on TikTok literally fighting for their livelihoods.”
The government’s case
The Justice Department says TikTok is a national security threat. It collects personal data on Americans and, despite assurances, could be compelled by the Chinese government to hand it over, the department argues. It adds that Beijing could manipulate the recommendation algorithm to shape U.S. public opinion.
“The Chinese government, which views the United States as a geopolitical rival, has broad authority and practical ability to require Chinese companies to secretly assist China’s intelligence, law enforcement and national security efforts,” the government’s brief says. In its view, any infringement on users’ First Amendment rights is outweighed by national security.
An appendix to the filing includes a declaration from David Newman, a principal deputy assistant attorney general in the National Security Division. It says employees used an internal platform called Lark and at times sent significant amounts of restricted U.S. user data to each other through it, leaving sensitive information on Chinese servers accessible to ByteDance staff in China.
TikTok had earlier launched “Project Texas,” a billion-dollar program to store U.S. user data on servers in Texas maintained by Oracle. U.S. officials dismissed it as cosmetic and ineffective.
