An appeals court heard arguments on TikTok’s ban-or-sale case. What’s next?
A federal appeals court heard arguments Monday in a case that pits the First Amendment against national security. TikTok sued to block a bipartisan-backed law that will ban the Chinese-owned app in the U.S. by January 19 — unless it finds a U.S. buyer.
This week, the government argued the app gives China access to Americans’ sensitive data, as well as the ability to spread propaganda. TikTok argued it’s been unfairly singled out and that a sale isn’t the only way to address security concerns.
TikTok touts 170 million users in the U.S., and that includes both candidates for president. A group of U.S.-based creators have also joined as plaintiffs in this lawsuit. Anupam Chander, professor of law and technology at Georgetown University, walked Marketplace’s Meghan McCarty Carino through the arguments in the case. The following is an edited transcript of their conversation:
Anupam Chander: The Tiktok users also argued in this case, so they had their own argument that their free speech rights were going to be harmed. And their argument essentially was, we should be able to choose which publisher we speak on, and you can’t simply go about changing the ownership of the publisher, selecting the publisher for us that violates our free speech rights. It’s like saying, well, you can’t publish in the New York Times, you have to publish in the Washington Post, or you can’t publish in Politico because Politico is foreign-owned.
Meghan McCarty Carino: Did you get a sense at all as to how the judges of the D.C. Circuit were receiving these arguments?
Chander: The case has always been a fascinating one, because this case puts national security concerns in the teeth of those First Amendment concerns, and so now you’ve got these judges who normally favor free speech now concerned about the national security. So I think there’s really a question as to how much the judges are willing to give credit and trust the government on its national security arguments. And I think you see some judges who are more willing to put faith in the governments, to essentially, not exactly defer, but really largely be more trusting of that argument, and others that were more concerned about the free speech ramifications of a potential ban of this app.
McCarty Carino: And we should note that some of the government’s national security arguments are actually not visible to the public still. They are sealed or redacted in some form.
Chander: Yeah, they’re not visible to TikTok either, so TikTok has to fight with one eye closed. It can’t actually see what it’s fighting. One thing we know is that the government’s secret evidence doesn’t include information that China is currently manipulating the app, because the government actually says “we have no information that China is currently manipulating the app; we fear that they might do so in the future. We know that they like to do so. Generally, they like to engage in foreign propaganda,” but they have no evidence of that thus far. That’s the intelligence services’ own declaration under oath in the case.
McCarty Carino: There have been previous attempts to force a sale of Tiktok, or ban Tiktok, that were not based on acts of Congress. Do the fates of those previous attempts tell us anything here?
Chander: No, I don’t think so, because here you have a clear congressional mandate that requires the ban or sale of this app. And I think those earlier cases really involved attempt to use statutes that weren’t fit for purpose. And also, a Montana case that really was an odd statute that was poorly designed that was destined to fail — Montana asserting national security protections of Montana citizens by barring a foreign app.
McCarty Carino: What have you made of the arguments so far? What stands out to you?
Chander: Well, I think a lot of this will depend on how safe or unsafe the judges think TikTok can be made. That is, is the proposal from TikTok that it localized data in Texas, it put the data on servers owned by U.S. company Oracle and have it controlled by significant rules that control the flow of data outside the United States, is that enough to secure the app from foreign manipulation? And I think some judges will be divided on that question, and that’s going to be a big issue. There’s a factual dispute as to where the algorithm is. The government says the algorithm is written in China. And Tiktok says no, the algorithm is actually on Oracle servers and it’s modified there and changed on those servers. So I think there’s an interesting factual dispute. But this court has no real quick way to resolve that factual dispute.
McCarty Carino: The government has asked the court to rule on this, I think before December. Where do you expect this will go next?
Chander: Well, whoever loses will likely ask the D.C. Circuit to reconsider, which most of the time the circuit court won’t do so, but maybe they will. In any case, one of the parties might file for the Supreme Court to review the case, and we don’t know whether the Supreme Court would necessarily take the case. It is a very interesting case, and the Court hasn’t shied away from taking hard internet law cases in the last few years.
McCarty Carino: Right, the Supreme Court has taken up a number of cases kind of involving online platforms and speech. Do you think any of those could have a bearing on this case if the Supreme Court does, in fact, take it up?
Chander: Well, they have a bearing on the case currently, because that was very much part of the argument. So you’ve got these cases involving the choices made by social media apps, the choices of what they promote by algorithm, or what they demote by algorithm. And the Supreme Court very resoundingly said, clearly for an American company those are First Amendment speech rights. That is the editorial decision making that a newspaper would be engaged in by choosing what to put on the first page as opposed to it be 30 — it’s the same kind of decision making that is protected by the First Amendment for platforms in choosing what to promote or demote on their algorithms.
We noted both presidential campaigns are on TikTok, though both have at times expressed skepticism about the app. Donald Trump this year walked back his previous support of a ban, something he tried and failed to accomplish through executive order when he was president.
His change of heart may have something to do with some reported lobbying from a donor invested in TikTok parent company ByteDance. And Trump has said the app provides important competition to Meta’s social media platforms, with which he has sometimes clashed.
Forbes points out that Project 2025, the conservative policy blueprint that Trump has sought to distance himself from, does call for outlawing the app. While President Joe Biden supported and signed the bipartisan law that could ban TikTok, Democratic nominee and Vice President Kamala Harris hasn’t directly addressed whether she supports that outcome.
A recent poll from Pew shows public support for a ban continues to decline, from about half of Americans in March to less than a third in July and August. But if the courts uphold the law, Forbes reports there’s little the public or the president could do to stop a ban at that point.
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