(Washington) TikTok tried Monday to convince a US federal court of the unconstitutionality of the law requiring its Chinese owner to sell it, facing circumspect judges.
Since the law was passed by the US Congress in April, the fate of the social network, accused of allowing Chinese authorities to unduly collect data on American users, has become a major issue in the political debate.
The text, signed into law by President Joe Biden, provides 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 opposes any ban on the wildly popular platform, after trying to ban it himself in 2020, at the end of his term.
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 attorney Andrew Pincus said at the outset. “For the first time, Congress has specifically targeted a U.S. agency,” he added, referring to TikTok USA, the group’s U.S. subsidiary.
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.
PHOTO JOSE LUIS MAGANA, ASSOCIATED PRESS
Lawyers representing TikTok, Andrew Pincus and Alexander Berengaut
The District of Columbia judges also questioned the government representative on whether the platform ban violates the First Amendment to the U.S. Constitution, which guarantees freedom of speech.
Daniel Tenny responded that since TikTok is controlled by a Chinese company, the protection of freedom of expression as defined by American law cannot be applied to it.
“After listening to the opening statements, I am confident that this case will end up in the Supreme Court,” said Sarah Kreps of Cornell University.
“The justices have seemed skeptical of TikTok’s arguments,” she observed, “but they have also raised important questions about the First Amendment and foreign influence.” […] to which no clear answers have been provided.”
“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.”
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.
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.