As the legal showdown over TikTok intensifies, the stakes are elevated for both national security and free speech. The U.S. government has enacted a ban on TikTok unless its Chinese parent company, ByteDance, divests its ownership.[i] In April, President Biden enacted legislation giving TikTok’s parent company, ByteDance, ninety days to either secure a buyer outside of China or face a nationwide ban.[ii] This case, currently under scrutiny by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, raises significant legal and constitutional questions, particularly regarding First Amendment rights.[iii]

The U.S. government argues that ByteDance’s ownership of TikTok poses a serious risk, potentially allowing the Chinese government to influence American content and access sensitive user data.[iv] TikTok, along with ByteDance and a group of its American users, contend that the proposed ban infringes upon their First Amendment rights. They argue that the law would unjustly restrict their ability to access and share content on a platform integral to modern communication and self-expression.

During a recent hearing, the appellate court panel expressed skepticism about TikTok’s argument that the law violates free speech rights.[v] The panel’s questioning highlighted significant doubts about the validity of TikTok’s claims. Bloomberg Intelligence analyst Matthew Schettenhelm noted that the panel’s reactions suggest a strong possibility that the D.C. Circuit could uphold the ban, leaving TikTok with the daunting task of seeking relief from the Supreme Court before the January 19 deadline when the ban is set to take effect.[vi]

TikTok and its legal team, including prominent Supreme Court litigator Andrew Pincus, argue that the proposed ban violates the First Amendment, which protects free speech and expression.[vii] They assert that the ban would limit the free speech of over 170 million U.S. users who rely on TikTok to share content, engage in discourse, and participate in cultural and social conversations.[viii] They further argue that the law unfairly punishes U.S. users for the actions of a foreign company, which plays a crucial role in the free exchange of ideas.

In response, the government’s argument centers on the possibility that the Chinese government could exploit TikTok to gather information on American users or influence their behavior. According to the Justice Department, ByteDance’s connections to China create a scenario where sensitive data could be accessed or public opinion manipulated, justifying the proposed ban as a necessary measure to protect U.S. interests.[ix] The appellate judges have raised concerns about whether the government’s actions are justified and whether they infringe upon constitutional rights. Chief Judge Sri Srinivasan questioned whether Congress could lawfully bar foreign adversaries from owning major media sources in the U.S., suggesting a broader context for the government’s actions.[x]

TikTok’s lawyer, Andrew Pincus, countered that any such law should undergo “strict scrutiny,” the highest level of judicial review, to determine if the infringement on rights is narrowly tailored to address a compelling interest.[xi]Examination under strict scrutiny would require the government to demonstrate that its actions are both necessary and the least restrictive means available. Judge Neomi Rao challenged TikTok’s arguments by pointing out that while many U.S. media outlets are foreign-owned, they are not owned by foreign adversaries.[xii] This distinction underscores the government’s position that the threat posed by ByteDance’s ownership of TikTok is unique.

The legal challenge also touches on whether the U.S. government can use classified information to argue its case without disclosing it to TikTok. The company has requested that a special master be appointed and that the law be put on hold if the government is allowed to use secret documents in its argument.[xiii] This issue adds another layer of complexity to the case, highlighting the tensions between national security and transparency. The potential ban on TikTok could have far-reaching implications for free expression. The app is not merely a platform for entertainment; it has become a vital space for political discourse, social commentary, and creative expression. A ban could significantly impact how users communicate and share ideas, affecting a broad spectrum of social interactions.

The outcome of the TikTok case could set a precedent for how future disputes involving foreign ownership of digital platforms are resolved. A ruling in favor of the ban might lead to increased scrutiny of other foreign-owned tech companies and prompt similar measures against platforms deemed national security threats. Conversely, a ruling in favor of TikTok could reinforce protections for free speech and limit the government’s ability to restrict digital platforms based on national security concerns. The TikTok case represents the critical intersection between national security and constitutional rights. As the legal battle unfolds, its resolution will have significant implications for the future of digital platforms and the protection of free speech. The eventual outcome will likely influence how similar issues are handled and serve as a benchmark for balancing security with freedom of expression.

[i] See Bobby Allyn, TikTok Argued Against its U.S. Ban in Court Today. Here’s What Happened, NPR (Sept. 16, 2024, 2:34 PM), https://www.npr.org/2024/09/16/g-s1-23194/tiktok-us-ban-appeals-court.

[ii] Id.

[iii] Id.

[iv] See David Shepardson, TikTok Faces Crucial Court Hearing That Could Decide Fate in US, Reuters (Sept. 13, 2024, 3:10 PM), https://www.reuters.com/legal/tiktok-faces-crucial-court-hearing-that-could-decide-fate-us-2024-09-13/.

[v] See Emily Birnbaum & Sabrina Willmer, TikTok Gets Tough Questions From Court in Fight Against Ban, Bloomberg L. (Sept. 16, 2024, 2:44 PM), https://news.bloomberglaw.com/tech-and-telecom-law/tiktok-battles-us-ban-at-appeals-court-to-determine-apps-fate.

[vi] Id.  

[vii] Id.  

[viii] Id.  

[ix] Fernanda Tronco, TikTok Gets Viral 15 Minutes in Ban Trial, TheStreet (Sept. 16, 2024, 2:30 PM), https://www.thestreet.com/politics/tiktok-viral-15-minutes-ban-trial.

[x] See Birnbaum & Willmer, supra note v.

[xi] Id.  

[xii] Id.  

[xiii] Emily Birnbaum & Sabrina Willmer, TikTok Fights US ‘Sale-or-Ban’ Law in Key Appeals Court Faceoff, Boston Globe (Sept. 16, 2024), https://www.bostonglobe.com/2024/09/16/business/tiktok-us-sale-ban-law-appeals-court/.