CNN —
TikTok, the popular social media platform celebrated for its frothy mix of dance videos, cat antics, news clips and recipes, will wage a substantial First Amendment battle at the Supreme Court on Friday.
As the Biden administration, defending a ban on TikTok, emphasizes the national security risks of the app’s Chinese parent company, TikTok and its allies are trying to shift the focus to the speech rights of millions of Americans and the ordinary fare they regularly see.
TikTok is appealing a formidable lower court ruling that highlighted security threats, specifically the US government’s concern that Beijing will amass data on American users and covertly manipulate TikTok’s content for espionage and other damaging purposes.
The members of the lower court panel, which included the circuit’s chief judge and a long-serving senior judge, represent both sides of the ideological spectrum and enjoy considerable respect at the Supreme Court.
The company and the content creators challenging the impending ban have strategically ramped up their arguments on the dangers of suppressing speech, even if propaganda from a foreign adversary. TikTok has also switched up its legal team for Friday’s arguments. It will be represented at the courtroom lectern by Noel Francisco, a former US solicitor general from Donald Trump’s first term.
Their message: China’s potential for US exploitation is exaggerated. The content creators who’ve also sued similarly turn the lens to the estimated 170 million Americans who use TikTok and the primary content they view.
“Only a fraction of the content on TikTok could even plausibly be put to the task of trying to advance China’s geopolitical interests,” wrote lawyer Jeffrey Fisher, who represents individual creators and will share time at the lectern with Francisco. “Most of it consists of things like dance videos, home-repair tutorials, and montages of weekend getaways.”
More importantly as a matter of First Amendment protection, Fisher wrote in a separate filing with the court last week, “it makes no difference that the government’s fear is that a ‘foreign adversary’ might be involved in pushing the objectionable speech to Americans.”
The unanimous Washington, DC-based US appellate court was persuaded, however, by the Biden administration’s arguments that Congress had sufficient national security concerns that China would control TikTok through its parent company, ByteDance, which is incorporated in the Cayman Islands but headquartered in Beijing. The law forces TikTok to find a new owner or face a ban on January 19.
In the opinion by Judge Douglas Ginsburg, a 1986 appointee of Ronald Reagan, the DC Circuit found the government had “compelling” interests in countering China’s efforts to collect data about American users and in countering the risk of covert manipulation of TikTok content. Ginsburg was joined by Judge Neomi Rao, a Trump appointee and former law clerk to Justice Clarence Thomas.
The third member of the panel, Chief Judge Sri Srinivasan, appointed by Barack Obama, agreed that the law should be upheld but cautioned that government need not meet the strictest First Amendment test to justify the law.
“(I)n step with longstanding restrictions on foreign control of mass communications channels,” Srinivasan wrote in a separate opinion, “the activity centrally addressed by the Act’s divestment mandate is that of a foreign nation rather than a domestic speaker—indeed, not just a foreign nation but a designated foreign adversary.”
Overall, the 92 pages of lower court writings struck themes that would appeal to the conservative-dominated Supreme Court.
The stakes in this appeal are great, given the pervasive reach of TikTok in America and ongoing US governmental efforts against the People’s Republic of China. Adding to the drama, President-elect Trump has submitted a brief urging the justices to put the law on hold so that he, once taking office, can negotiate a resolution that addresses security concerns but saves the platform. The ban is scheduled to take effect one day before Trump’s inauguration on January 20.
In the Biden administration’s defense of the law, US Solicitor General Elizabeth Prelogar asserted in a filing last week: “No one disputes that the People’s Republic of China (PRC) seeks to undermine US interests by amassing sensitive data about Americans and engaging in covert and malign influence operations. No one disputes that the PRC pursues those goals through ostensibly private companies subject to its control and by pre-positioning assets in the United States to deploy at opportune moments.”
“And in light of those realities,” insists Prelogar, who will represent the Biden administration Friday, “no one can seriously dispute that the PRC’s control of TikTok through ByteDance represents a grave threat to national security.”
The ban, passed by Congress and signed by Biden in April, arose from years of bipartisan concern over the dangers of Beijing’s influence on Americans. Officials expressed fears, for example, that China could use swaths of sensitive data collected by TikTok to blackmail individuals or engage in corporate espionage.
Under the law, TikTok would be allowed to continue operating after January 19 only if it divests the platform from ByteDance. If it fails to find a new owner, US app stores and internet hosting services would be banned from distributing and servicing TikTok.
The DC Circuit stressed the government’s history of focusing on dangers posed by the Chinese parent company: “The multi-year efforts of both political branches to investigate the national security risks posed by the TikTok platform, and to consider potential remedies proposed by TikTok, weigh heavily in favor of the Act. … It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well substantiated national security threat posed by the PRC.”
The lower court repeatedly cited a 2010 Supreme Court decision, Holder v. Humanitarian Law Project, that was written by Chief Justice John Roberts and requires deference to government on matters of national security and foreign affairs.
Referring to language in Roberts’ opinion, Ginsburg wrote, “The Government has offered persuasive evidence demonstrating that the Act is narrowly tailored to protect national security. ‘Given the sensitive interests in national security and foreign affairs at stake,’ the Government’s judgment based upon this evidence ‘is entitled to significant weight.’”
Srinivasan similarly relied on the rationale: “It is a modus operandi of the PRC to surreptitiously access data through its control over companies like ByteDance. … Even if the PRC has yet to discernibly act on its potential control over ByteDance’s access to data on American users in particular, Congress did not need to wait for the risk to become realized and the damage to be done before taking action to avert it.”
In TikTok’s appeal, Francisco argues that the government has overstated China’s interest in TikTok’s data and understated TikTok’s ability to protect itself against interference from China. He says while Congress can force the company to disclose its ties to foreign adversaries, it cannot outright ban the distribution of foreign views, even hostile propaganda.
Francisco observed that even at the height of the Cold War, the First Amendment prevented government from stopping American activists from distributing communist propaganda.
He stresses that TikTok exercises its free speech rights through its American employees, who, the company insists, “can choose, at minimum, whether to submit to any purported ‘control’” by ByteDance.
Fisher, on behalf of people who create content for the platform, separately adds that Congress could have opted, without infringing speech rights, to prohibit ByteDance from sharing data with China.
And he pressed the justices in his written brief to consider the looming First Amendment consequences, Fisher said: “Rarely if ever has the Court confronted a free speech case that matters to so many people. 170 million Americans use TikTok on a regular basis to communicate, entertain themselves, and follow news and current events. … (T)he closing of TikTok will profoundly limit their expression.”
