WASHINGTON—Counsel representing TikTok and its parent company, the Chinese-owned tech giant ByteDance, pleaded its case against the U.S. Monday before a panel of three federal appeals judges of the U.S. Court of Appeals for the District of Columbia Circuit.
TikTok sued the federal government, namely U.S. Attorney General Merrick Garland, after Congress and the Biden administration implemented a so-called ban on the popular social media video platform.
Transcripts of the oral arguments reveal the panel of judges were skeptical of arguments made by lawyers representing the app and its content creators that the law singles them out.
The law adopted by the government earlier this year doesn't explicitly ban TikTok, but it requires the U.S.-based operating company of the app to be divested from ByteDance and owned by a non-Chinese company—preferably a company based in the United States.
"[Part] of the issue in this case, and we think it's a Constitutional flaw and not just a problem, is that Congress didn't do any of the things that the First Amendment requires," said attorney Andrew Pincus, who represents TikTok, before the panel.
At issue is whether TikTok can continue to operate in the United States when its highly-developed content recommendation algorithm remains owned by ByteDance, which supposedly has links to the central organs of the Chinese Communist Party and the People's Liberation Army of China.
The attorney representing TikTok content creators, Jeffrey Fisher, argued the federal government's targeting of TikTok and foreign companies doesn't negate First Amendment rights for its users or the business itself.
"Well, the creators' interest here is the First Amendment right to publish and coordinate with their publisher of choice, as in the net choice sense of TikTok," Fisher said. "[There] is no First Amendment interest in foreign speakers speaking abroad, but once that speech is directed into the United States, and certainly once that speech is in concert with other Americans, and indeed propagated by other Americans, the speech on TikTok is not Chinese speech."
Fisher added, "It is American speech that at most is curated by a foreign company and, the government says, potentially by a foreign government as well, but it's American speech. You're way, way, way on the First Amendment protective side of the equation."
Daniel Tenney, the attorney representing the U.S. government and the Justice Department, disagreed with Fisher and Pincus. Tenney presented a legal theory of how the law specifically targeting foreign-owned applications, like TikTok, only implicated the free speech of ByteDance.
He said that since ByteDance is a Chinese firm, it doesn't have First Amendment protection. Tenney contends this, despite ByteDance having a huge market of users in the U.S. and the majority of TikTok's North American operations currently being located in U.S. cities.
Tenney said TikTok's creators produce content that "is not expression by Americans in America." Pointing to the algorithm, he added, "It is expression by Chinese engineers in China. This code is written in China, and the determination about how it should be changed, how it should be altered ... is done in China."
TikTok's senior leadership has maintained that this violates the First Amendment rights of its 170 million users living in the United States alone.
AVN has covered the TikTok case because adult content creators, producers and brands have used TikTok as a popular safe-for-work marketing tool to draw traffic to their not-safe-for-work premium fan pages and membership websites.
TikTok, et al. v. Garland is proving to be a landmark First Amendment case. Lawyers representing the parties in the case expect a decision by December 2024. Those observing the case expect the parties to appeal the case to the U.S. Supreme Court, depending on how the D.C. Circuit rules.
