TikTok will try to convince a federal court on Monday that a law requiring its Chinese owners to sell the app or face a ban in the United States is unconstitutional.
Since the law was passed by the US Congress in April, the fate of TikTok in the country has become a major issue in political debate.
Republican presidential candidate Donald Trump opposes any ban on the wildly popular platform, after trying to ban it himself in 2020, at the end of his term.
President Joe Biden, on the other hand, signed legislation that gives TikTok until January to no longer be owned by a Chinese company. His Vice President Kamala Harris is the Democratic nominee for the White House.
TikTok’s parent company ByteDance has said it has no plans to part ways with its prized app, making legal action its only option for survival in the United States.
A ban would likely provoke a strong reaction from Beijing and make U.S.-China relations even more strained.
Three judges from the U.S. Court of Appeals for the District of Columbia are set to hear arguments Monday from TikTok, ByteDance and a group of users, who will essentially argue that the law violates the right to free speech guaranteed by the U.S. Constitution.
The justices will rule on the case in the coming weeks or months. But whatever they decide, it is likely to go to the U.S. Supreme Court.
– “Empty shell” –
TikTok claims that “the Constitution is on our side,” adding that the law would silence the voices of 170 million Americans.
“There is no doubt that the law will shut down TikTok by January 19, 2025,” the company’s lawsuit states, “silencing those who use the platform to communicate in ways that cannot be replicated elsewhere.”
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TikTok also argued that even if the divestiture were possible, the app “would still be reduced to an empty shell, devoid of the innovative technology that tailors content to each user.”
The U.S. government counters that the law addresses national security issues, not free speech, and that ByteDance cannot assert constitutionally protected rights.
“Given TikTok’s vast reach in the United States, China’s ability to use TikTok’s features to achieve its overall goal of undermining U.S. interests poses a national security threat of immense depth and breadth,” the U.S. Justice Department wrote.
The United States says ByteDance can and does comply with Chinese government requests for data on American users. Authorities also say the company acquiesces to pressure to censor or promote certain content on the platform.
TikTok denies these accusations.
– Towards the Supreme Court –
Former President Donald Trump’s 2020 executive orders to ban TikTok were blocked by a federal judge, who cited likely overblown reasons and a potential violation of free speech rights.
Since then, the Republican billionaire, who was very angry with Meta (Facebook, Instagram) and the other major platforms that temporarily banned him for inciting violence after the storming of the Capitol in 2021, has changed his mind.
“For everyone who wants to save TikTok in America, vote for Trump,” he said in a video posted last week.
Democratic candidate Kamala Harris is on TikTok and has embraced social media as a way to connect with young voters.
The new law signed by Joe Biden was designed to overcome legal hurdles, but some experts believe the U.S. Supreme Court will struggle to see national security concerns as outweighing protections for free speech.
Much of the government’s arguments are under seal, which “complicates efforts to evaluate them,” said Carl Tobias, a law professor at the University of Richmond.
“However, the U.S. Supreme Court has generally been very cautious about accepting national security arguments when the regulations (in question) restrict the right to free speech, particularly with respect to the internet,” he added.
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