TikTok’s battle to block the sell-or-be-banned law passed earlier this year by US Congress reached a court in Washington DC yesterday, with judges grilling legal representatives for both the US government and especially TikTok.
Andrew J Pincus, representing TikTok, set out the social media company’s key arguments. “Divestiture isn't feasible here”, he told the judges, “so this isn’t just about divestiture, it’s really about a ban”. And the ban is unconstitutional on First Amendment free speech grounds, he added, declaring that “this law imposes an extraordinary speech prohibition based on indeterminate future risks”.
TikTok, of course, denies that the Chinese government has access to its user data and influence over its content curation via China-based owner ByteDance, those being the concerns that prompted Congress to pass the law that forces a change of ownership or a US-wide ban of the short form video app.
Whether or not you believe TikTok about any of that, under the First Amendment, laws that restrict free speech must be evaluated under what is known as ‘strict scrutiny’, Pincus told the judges. And that includes demonstrating that Congress and the US government have pursued the “least restrictive” remedy possible to address their concerns.
TikTok argues that there are plenty of other possible remedies that are less restrictive than an outright ban. With that in mind, Pincus concluded, “the government has not come anywhere near satisfying strict scrutiny”.
According to Law360, Judge Neomi Rao questioned whether, when it comes to national security matters, the government is still obligated to seek the least restrictive remedy. Requiring strict scrutiny in that scenario, she mused, “would seem to me quite a remarkable determination”.
Judge Sri Srinivasan asked Pincus whether he believes the strict scrutiny obligation would even apply to national security threats related to a country at war with the US. “I think we would still be in the world of strict scrutiny”, the lawyer replied. The hypothetical war might justify the restriction on free speech, “but I think we would still have to look at those rationales and decide that they were sufficient” to justify a ban.
TikTok also argues that the sell-or-be-banned law is unconstitutional because it applies to a single company and laws passed by Congress should be “generally applicable”. Judge Douglas Ginsburg challenged that argument, stating that it’s “a rather blinkered view” that the sell-or-be-banned law “just singles out one company”.
The law “describes a category of companies, all of which are owned by or controlled by adversary powers”, he said.
Ginsburg suggested that the new law had created “an immediate necessity” of divestiture for TikTok in particular simply because it has been involved in talks with the US government for two years to try and “reach an agreement on a national security arrangement”, without success.
It’s not clear how long it will take for the DC court to reach a conclusion on TikTok’s appeal, though the clock is ticking. The sell-or-be-banned law sets a deadline of mid-January for TikTok to have a new owner or face a ban.