Threatened with ban in the United States, TikTok counterattacks in court

TikTok attempted on Monday, September 16, to convince a US federal court of the unconstitutionality of the law requiring its Chinese owner to sell it, in the face of circumspect judges.

Since the bill was passed by the US Congress in April, the fate of the social network, accused of allowing Chinese authorities to improperly collect data from American users, has become a major issue in the political debate. The law, signed into law by President Joe Biden, states that if parent company ByteDance has not sold TikTok by January 19, 2025, the platform will be banned in the United States.

Republican presidential candidate Donald Trump, for his part, opposes any ban on the hugely popular platform, after having himself tried to ban it in 2020, at the end of his term.

Freedom of expression under debate

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.

“This law is unprecedented”TikTok lawyer Andrew Pincus said at the outset. “For the first time, Congress has expressly targeted an American body”he added, referring to TikTok USA, the group’s subsidiary in the United States. This last argument did not seem to convince the magistrates, who recalled that the group had a Chinese majority shareholder and cited abundant case law for groups or organizations banned in the past.

The District of Columbia judges also questioned Justice Department attorney Daniel Tenny about whether the platform’s ban violated the First Amendment to the U.S. Constitution, which guarantees freedom of speech. Tenny responded that because TikTok is controlled by a Chinese company, the protection of free speech as defined by U.S. law could not apply to it.

“After listening to the opening statements, I am confident that this case will end up before the Supreme Court.”commented Sarah Kreps, professor at Cornell University, quoted by Agence France-Presse. “The judges appeared skeptical of TikTok’s argumentsshe observed. But they also raised important questions about the First Amendment and foreign influence … that have not been clearly answered.”

“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 result in TikTok being shut down by January 19, 2025.”the company argues in its appeal, “silencing those who use the platform to communicate in ways that cannot be replicated elsewhere”. TikTok also argued that even if the divestiture were possible, the app “would always be reduced to an empty shell, devoid of the innovative technology that adapts the content to each user”.

The U.S. government says the law addresses national security issues, not free speech, and that ByteDance cannot assert constitutionally protected rights. The U.S. says ByteDance may have to comply with Chinese government requests for data on U.S. users. U.S. authorities also say the company acquiesces to pressure to censor or promote certain content on the platform. TikTok denies the allegations.

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. The Republican billionaire, who was furious with Meta (Facebook, Instagram) and other major platforms that temporarily banned him for inciting violence following the 2021 Capitol storming, has since reversed course. “For everyone who wants to save TikTok in America, vote for Trump”he said in a video released last week.