First Amendment Constraints on a U.S. Shutdown of the TikTok App for Searching for Foreign Intellectual Property

Lawyers for TikTok argue that the shut-down of the app is a gross violation of the First Amendment rights of users in the U.S.

But the judges also questioned whether creators really have a First Amendment interest in who owns TikTok. Justice Amy Coney. Barrett’s musings in the recent NetChoice case about how foreign ownership could change the First Amendment calculus also came up, and the judges noted the law is about foreign adversary nations, not just foreign ownership broadly.

The DC Circuit is an appeals court that tends to deal with cases involving federal agencies. The fact that the bill is a congressional act rather than an agency action was appreciated by the judges. The findings of Congress are valid because they were able to pass the law and not because of the EPA, as being told to Andrew Pincus by Rao. Later, Rao said that many of Pincus’ arguments sounded like he wants the panel to treat Congress “like an agency.”

Lawmakers and national security officials in Washington believe that the Chinese government may be able to manipulate the TikTok feed to amplify their propaganda. There are concerns regarding Chinese government espionage and the misuse of Americans data.

Before the deal could be finalized, however, a number of China hawks in the White House intervened with an ultimatum: Sell the app to a non-Chinese company or group of outside investors, or be banned in the U.S.

The U.S. ban is not a foreign country: The case of TikTok, Tenny and Srinivasan

“I know Congress doesn’t legislate all the time, but here they did. They passed a law. Many of your arguments want us to treat them like we are an agency.

Judges acknowledged that whatever the basis was for passing the law, the court will show deference to Congress that it has indeed established a legitimate national security threat. The question is whether that security risk is enough to justify speech restrictions.

It is possible that ByteDance will try to convert Americans against the U.S. in order to get an intelligence asset, Tenny said.

Fisher said yes. He said they still have an interest in working with foreign publishers.

Jeffrey Fisher is a lawyer representing TikTok creators and was asked if there is a First Amendment interest in who owns the platform.

A big difference, said Srinivasan, is that Politico and Business Insider are not owned by a foreign adversary. TikTok, he said, is owned by ByteDance, a company based in China.

Source: TikTok argued against its U.S. ban in court today. Here’s what happened

The Three-Judge Panel Will Rule in the U.S. In the Case of TikTok’s Propagation in the Light of the High-Centric-Right-Area Elections

The three-judge panel is asked by the Justice Department to make a ruling by December. Whatever the ruling can be appealed to the full panel of the appeals court. Either side can ask the Supreme Court to review the decision after that.

The law banning TikTok was passed by Congress. Former President Trump has said on the campaign trail that he now supports TikTok’s existence in the U.S., an about-face from his efforts to shut down the app when he was in the White House.

It was not clear how the court would make a decision in the case of the most dire-yet challenge TikTok has faced.