TikTok questioned by appeals court as judges consider challenge to sell-or-ban bill

TikTok faced sharp questions from a U.S. appeals court on Monday as the company seeks to block a law that would force China-based ByteDance to sell the video-sharing app by Jan. 19 or face a total ban.

A lawyer for TikTok argued before a three-judge panel that the law, signed by President Joe Biden in April, violates the First Amendment.

“The law before this court is unprecedented and its effects would be staggering,” TikTok’s outside counsel Andrew Pincus said during the closely watched hearing.

“For the first time in history, Congress has specifically targeted a specific American speaker by banning his speech and that of 170 million Americans,” Pincus added.

Federal authorities, for their part, have reiterated their argument that the risk of the Chinese government manipulating the app poses an unacceptable risk to national security.

TikTok, led by CEO Shou Chew, and the Justice Department have asked the U.S. Court of Appeals for the District of Columbia to make a decision by December 6.

The two-hour hearing, which also included testimony from TikTok creators who say a ban would harm their livelihoods, ended with no clear indication of the panel’s decision.

However, the judges appear unconvinced by key elements of TikTok’s position, legal experts told the Post.

At one point, Judge Sri Srinivasan fired back at TikTok’s Pincus by pointing out that the case hinged on ownership of the China-based app. He raised the hypothetical question of whether Congress would be allowed to bar a foreign adversary from owning a media outlet in the United States during a war.

Elsewhere, Judge Neomi Rao said TikTok relied on a “very strange framework” to strike down the law by essentially ignoring the fact that Congress had “actually passed a law” and instead treating it as if it were a federal agency.

“I expected TikTok to face an uphill battle in this hearing, but the questions they faced were much more critical than I expected,” said Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey School of Law. “The justices seemed pretty skeptical that the law deserves scrutiny, or even intermediate scrutiny.”

“It’s hard to make predictions about these things, but after today’s debate, I would say the smart bets are on a unanimous and very clear loss for TikTok,” added Hurwitz, who noted that the justices “appeared to take the national security arguments very seriously.”

Gautam Hans, a law professor and associate director of Cornell University’s First Amendment Clinic, said the panel “was tough on TikTok.”

Courts are generally deferential to Congress and reluctant to interfere too much in foreign affairs, Hans said. The justices appear to be focused on whether TikTok’s foreign ownership outweighs potential First Amendment concerns, he added.

“The government has sought to downplay the speaking interests in this case, and that certainly gained traction with the panel,” Hans added.

Whatever the panel decides, the case is likely to end up before the Supreme Court.

“The law requires the Supreme Court to decide quickly, and it’s hard to imagine the losing party not asking the Supreme Court to review the case before the deadline,” said Alan Morrison, a constitutional law expert at George Washington University Law School. “I think the Supreme Court will hear the case this term.”

The Justice Department has argued that the divestment or ban bill is based on urgent national security concerns related to TikTok’s Chinese ownership.

During the hearing, federal authorities raised the possibility that China could modify TikTok’s algorithm for malicious purposes.

“It’s a travesty to suggest that with these two billion lines of code – 40 times larger than the entire Windows operating system, modified 1,000 times a day – we’re somehow going to detect that they’ve modified it,” said DOJ attorney Daniel Tenny.

In documents filed in July, federal authorities alleged that TikTok was able to collect sensitive data related to issues such as gun control and abortion from its users and cited risks that Beijing could use the app as a weapon to further its own goals.

Federal authorities also say TikTok’s parent company, ByteDance, is not eligible for the same First Amendment protections afforded to American companies.

Aside from First Amendment concerns, TikTok argued that divestment was not possible within the limited time frame provided by the bill.

Former Treasury Secretary Steven Mnuchin is among the U.S. investors who have said they would be interested in buying TikTok if the app were available. As reported by the Washington Post, Mnuchin has been talking to potential partners about a project to rebuild TikTok’s recommendation algorithm in the United States.

The battle over TikTok’s fate is being played out against the backdrop of the 2024 presidential election. Both Donald Trump and Kamala Harris are active on the platform.

The Biden-Harris administration signed the divestment bill into law.

Trump had initially supported a ban on TikTok, but has since changed his position, arguing that the bill risked transferring more power and market control to Instagram’s parent company, Meta, and its boss Mark Zuckerberg.

With post wires