TikTok’s fight for survival—in its current form at least—arrived in federal court Monday, raising key legal issues about free speech, an expert has told Newsweek.
In the case, closely watched by many of the 170 million American TikTok users, the U.S. government wants to force the sale of the social media company from its China-based parent company, ByteDance, or enforce an outright ban, citing national security issues.
When oral arguments began at the U.S. Court of Appeals for the Washington D.C. Circuit, TikTok argued free expression outweighs those concerns.
“It’s spicy, and it’s a little bit uncertain whether it’s going to go TikTok’s way, or the speakers, the users and the company’s way, in part because the judges seem skeptical of everybody,” said Abigail Rekas, an attorney and legal expert specializing in copyright, art law, and free speech at the University of Galway, Ireland. “They ask some pretty hard questions of both sides.”
TikTok and ByteDance’s lawyer Andrew Pincus centered much of his argument around free speech and First Amendment rights.
He told the court: “The notion that a foreign adversary is going to spread ideas about political issues and social issues, which is exactly what the government says in its brief, has never in our history been a basis for suppressing speech in this country, even of the foreign governments, let alone American speakers speaking on their own terms to other Americans.”
One of the three judges, Neomi Rao, did not appear to have been swayed, stating: “ByteDance would remain free to post, you know, or to speak or to do anything else in the United States. It doesn’t prevent ByteDance from doing that. It doesn’t suppress their speech.”
But the free speech argument is not just about ByteDance itself, Rekas said.
“There’s the speech of the users of the platform, and that is clearly going to be restricted; if this is ultimately banned, that speech will be restricted. They will not be able to speak using that medium anymore. That’s pretty clear.”
SAUL LOEB/AFP via Getty Images
Although, when it comes to TikTok, the U.S. corporate entity, she says: “It’s not about them speaking, it’s about their editorial and curatorial decisions that they’re making[…]there’s also the editorial aspect that’s built through the algorithm. And there is a notion that is, in and of itself, speech.”
A lack of legal precedent adds to the uncertainty. “Nobody’s really sure how this one’s going to come out,” added Rekas.
The only case in the past bearing any similarity is the forced sale of dating app Grindr.
The app was originally owned by Chinese gaming company Beijing Kunlun Tech, but was sold in 2020 for about $600 million to an American company on the orders of the U.S. government. It does not necessarily set any precedent, nor was it mentioned in the court hearing on Monday by either side.
“Grindr isn’t a speech platform in any way. And so the balancing act wouldn’t be the same; we’re not talking about one of our constitutional rights[…]although there’s potentially arguments to be made [in terms of free speech], it wasn’t the same kind of a controversy,” said Rekas.
However, as Rekas points out, “that argument of ‘we can restrict speech, trust us, it’s OK,’ that argument has failed a few times. There is precedent for that argument being not good enough for free speech restrictions.”
Has TikTok Done Enough?
Project Texas is TikTok’s initiative to address U.S. national security concerns and was launched in response to scrutiny from American lawmakers and regulators as a means to isolate TikTok’s U.S. operations and data from potential Chinese government influence.
TikTok partnered with cloud computing company Oracle to store all data from American users on servers located within the United States. This move was designed to prevent ByteDance from accessing the sensitive information of U.S. users.
Additionally, the project included the creation of a new entity, TikTok U.S. Data Security, overseen by a board of American citizens and subject to independent audits. These measures were intended to provide greater transparency and assurance that U.S. user data is being protected from foreign access or manipulation.
“In the previous administration, they threatened this TikTok ban over the fact that data was not being processed in the United States, it was being sent to China, and there are national security concerns,” said Rekas.
“Project Texas is essentially an American-owned, operated and controlled data center for all U.S.-based TikTok data that doesn’t ever leave American soil, and one of the things you may have heard in the oral arguments [during Monday’s hearing] is, well, that’s not good enough,” Rekas explained.
Why? The U.S. government’s argument is that ByteDance is too close to the Chinese government and is concerned “that if Beijing orders TikTok to take that data, they will do it,” said Rekas, adding that “a lot of the government’s case is based on national security data that is not available to the public.”
Kevin Dietsch/Getty Images
Rekas went on to explain that the U.S. government has to prove a rigorous level of threat in order to curtail speech via this ban: “A lot of the argument [in the hearing] was over what level of scrutiny should be applied. Now, if we are talking about content-based prior restraint, that’s going to get the strictest level of scrutiny. And, as legal scholars say, ‘strict in scrutiny, but fatal in fact.’ In fact, it’s very, very rare for a law to survive that level of scrutiny.”
“Why they’re fighting over what level of scrutiny should to be applied is because the government would like a lower level of scrutiny, because it means that their ban is more likely to succeed, it’s more likely to be found constitutional.”
What Could It Mean for TikTok Users?
One of the potential outcomes of this case is what is known as forced divestiture; like Grindr, ByteDance could be compelled to sell TikTok to a U.S. company. However, TikTok could be sold in two ways, with or without its all-important algorithm.
If forced to divest, the sale of TikTok without its algorithm could significantly affect its value and user experience. With its algorithm, it could sell for an estimated $100 billion, without it, it could drop to $30 or $40 billion.
“Either the ban will result in TikTok withdrawing from the U.S. market entirely, or there will be a divestiture, and it’ll be sold. If it is sold, the algorithm is very unlikely to go with it,” explained Rekas.
Without the algorithm, however, will U.S. users still want to engage? “It will not be the same platform at all,” said Rekas.
And then there is the sale. Rekas highlighted potential antitrust issues that could arise if TikTok is forced to sell to a U.S. company, given the current scrutiny on tech monopolies. “You’ve got some antitrust issues there, depending on who lines up to buy it,” she noted.
“And I think that would limit who can buy it; the people with the resources to buy it maybe wouldn’t be allowed.”
TikTok declined to comment when approached by Newsweek. Newsweek has reached out to the Department of Justice via its media inquiries form.