Cybersecurity Policy Report, TikTok Faces Skeptical Judges in Challenge of Divestiture Law, (Sep 16, 2024)

By Tom Leithauser

Attorneys for TikTok, Inc., and its U.S. users today sought to convince a federal appeals court that a law requiring the company to sever its ties with China runs afoul of the First Amendment, while a Justice Department attorney aimed to downplay First Amendment concerns and focus on the national security risk of allowing Chinese influence over a dominant U.S. social media platform.

DoJ’s arguments seemed to garner more sympathy from the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that heard oral argument in TikTok, Inc., and ByteDance Ltd. v. Merrick B. Garland in his official capacity as Attorney General of the United States (appeal docketed, No. 24-1113 (D.C. Cir. May 7, 2024)) and Brian Firebaugh, et al., v. Merrick B. Garland in his official capacity as Attorney General of the United States (appeal docketed, No. 24-1130 (D.C. Cir. May 14, 2024)).

TikTok and its Beijing-based parent company, ByteDance, and a group of TikTok’s U.S. “creators” are challenging the Protecting Americans from Foreign Adversary Controlled Applications Act (Pub. L. No. 118-50 (Apr. 24, 2024)), which requires ByteDance to sell TikTok to an owner without ties to the Chinese government or face what would amount to a ban on its ability to operate in the U.S. (CPR, June 17).

The companies and creators insisted that the law infringed on their First Amendment rights, but DoJ attorney Daniel Tenney argued that the law instead implicated only the free speech rights of ByteDance, a foreign company to which the First Amendment didn’t apply.

The content provided to U.S. users of TikTok “is not expression by Americans in America. It is expression by Chinese engineers in China,” Mr. Tenney said. “This code is written in China, and the determinations about how it should be changed, how it should be altered ... all of that is done in China.”

The effect of the law on TikTok’s U.S. users was “incidental” and “indirect,” he said, noting that other platforms were available to those users to exercise their free speech rights.

He explained that Congress enacted the law out of concerns that the Chinese government could harvest data about Americans and use that data to further its own national security interests, not to silence Americans.

“If you put someone in prison because he robbed a bank, and he happens to be a prominent speaker, nobody thinks that’s a First Amendment claim,” Mr. Tenney said.

But Andrew Pincus, the attorney for TikTok and ByteDance, disputed Mr. Tenney’s argument that the content on TikTok represented only the views of its Chinese owners. TikTok, Inc., is a U.S. company, he insisted.

“The speech here that’s being banned ... is the speech of a U.S. speaker. The government tries to argue that because TikTok, Inc., ultimately has a foreign owner, that somehow affects whether TikTok, Inc., a U.S. entity, has First Amendment rights.”

Likewise, Jeffrey Fisher, the creators’ attorney, observed that U.S. users of TikTok obviously had First Amendment rights. “The speech on TikTok is not Chinese speech. It is American speech that at most is curated by a foreign company.”

Mr. Pincus told the court that it was “infeasible” for ByteDance to divest TikTok, and Mr. Fisher said the creators he represents had tried to use other platforms but found them to be inferior to TikTok. Mr. Fisher also observed that much of the user data collected by TikTok was surrendered voluntarily to the company through user agreements.

Mr. Fisher likened a U.S. ban on TikTok to a ban on Democracy in America, a famous 19th century book by a French writer, Alexis de Tocqueville, who was sent to the U.S. by the French government—an analogy that received pushback from Circuit Judge Neomi Rao.

“We’re not talking about banning Tocqueville in the United States. We’re talking about a determination by the political branches that there’s a foreign adversary that is potentially exercising covert influence in the United States,” Judge Rao said.

An even less sympathetic view about the arguments by the companies and creators was expressed by Senior Circuit Judge Douglas Ginsburg, who noted that the law included provisions that would allow the president to identify other foreign-owned Internet platforms and impose similar divest-or-ban options on those that posed a national security threat.

“It’s a rather blinkered view that the statute just singles out one company. It describes a category of companies, all of which are owned by—or controlled by—adversary powers and subjects one company to an immediate necessity because it [the U.S. government] engaged in two years of negotiations with that company ... meeting after meeting after meeting, in an attempt to reach an agreement on a national security arrangement, which failed,” Judge Ginsburg said.

“This is so clearly targeted not just at TikTok and ByteDance but at China,” he added.

The third judge on the panel, Chief Circuit Judge Sri Srinivasan, sought to understand whether the content “curation” by TikTok occurred in China or the U.S. The location of the curator—TikTok’s recommendation algorithm—would determine whether the First Amendment applied, he suggested.

“When it’s a foreign organization, they don’t have a first Amendment right to object to a regulation of their curation,” Judge Srinivasan said. He said the government’s argument was that TikTok, Inc., “may well have First Amendment rights—and does—and TikTok, Inc., can continue to curate to its heart’s content, but what it can’t do is do that while it’s owned by China.”

Arguments by TikTok and ByteDance that the law was invalid because Congress didn’t offer any “findings” about the national security risks of TikTok’s popularity in the U.S. also fell flat.

“We’ve never held that Congress is required to enact findings,” Judge Rao said. “In some sense the finding is that they passed a law. ... There’s no requirement that Congress needs to put in a statute its findings.”

“I think you’re arguing for us to remand without vacatur to Congress for more findings,” she told Mr. Pincus. “It’s a very strange framework. I know that Congress doesn’t legislate all the time, but here they did. They actually passed a law. Many of your arguments want us to treat them like an [executive branch] agency.”

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