TikTok, the widely popular social media app known for its diverse content—ranging from dance routines and cat videos to news updates and DIY tutorials—is set to face a significant First Amendment challenge in the United States Supreme Court this Friday.
The Biden administration, advocating for a TikTok ban, cites national security concerns tied to the app’s Chinese parent company, ByteDance.
Meanwhile, TikTok and its supporters are emphasizing the broader speech rights of millions of Americans who rely on the platform.
This appeal follows a robust lower court ruling that underscored potential threats, including fears that Beijing could exploit TikTok for data collection and content manipulation.
TikTok’s legal strategy now includes a high-profile advocate, Noel Francisco, a former solicitor general under Donald Trump, who will argue the case. Alongside TikTok’s team, attorney Jeffrey Fisher, representing content creators, will address the implications for free speech, stating, “Only a fraction of the content on TikTok could even plausibly be put to the task of trying to advance China’s geopolitical interests. Most of it consists of things like dance videos, home-repair tutorials, and montages of weekend getaways.”
The case stems from a law passed in April, mandating TikTok to sever ties with ByteDance or face a nationwide ban by January 19.
The law has garnered bipartisan support due to fears that the Chinese government could use data collected by TikTok for espionage or blackmail.
ByteDance, headquartered in Beijing but incorporated in the Cayman Islands, has been at the center of US security concerns.
In a detailed 92-page opinion, the DC Circuit Court supported the government’s stance. Judge Douglas Ginsburg, a Reagan appointee, highlighted the “compelling” national security risks posed by TikTok’s links to China, a sentiment echoed by fellow judges Neomi Rao, appointed by Trump, and Sri Srinivasan, an Obama appointee. Srinivasan noted that the law targets foreign adversaries, asserting, “Congress did not need to wait for the risk to become realized and the damage to be done before taking action to avert it.”
TikTok’s appeal challenges this perspective, arguing that the government’s fears are overblown. Francisco asserts, “The government has overstated China’s interest in TikTok’s data and understated TikTok’s ability to protect itself against interference from China.”
He draws parallels to Cold War-era rulings, emphasizing that even hostile propaganda was protected under the First Amendment.
Fisher, advocating for TikTok’s creators, argues that the law unnecessarily suppresses speech.
“Congress could have opted, without infringing speech rights, to prohibit ByteDance from sharing data with China,” he wrote, urging the justices to consider the potential impact on the app’s estimated 170 million American users. He added, “Rarely if ever has the Court confronted a free speech case that matters to so many people.”
The Biden administration, represented by Solicitor General Elizabeth Prelogar, maintains that the ban is justified.
“No one disputes that the People’s Republic of China (PRC) seeks to undermine US interests by amassing sensitive data about Americans and engaging in covert and malign influence operations,” Prelogar stated. She insists that TikTok’s ownership structure poses a “grave threat to national security.”
The outcome of this case could have far-reaching implications, not only for TikTok but also for broader debates about free speech, national security, and foreign influence. With the Supreme Court now set to weigh in, the stakes are higher than ever for the app’s future in the US.
