Illustration: Aïda Amer/Axios
The Justice Department is arguing in court that TikTok has not made any valid claims that the divest-or-ban law is unconstitutional.
Why it matters: DOJ's filings are the government's opportunity to justify forcing a sale of TikTok by laying out the company's ties to China and why that makes it a national security threat.
- DOJ officials briefed reporters ahead of the midnight filing deadline, but did not share copies of the documents in advance.
There are "new and significant indications of ByteDance and TikTok's history of censorship and content manipulation," senior DOJ officials explaining the filings told reporters on a call Friday.
According to the officials, the filings point to:
- The use of servers in China by TikTok employees to communicate with engineers there, as well as sensitive U.S. data being stored there.
- A tool that allowed ByteDance and Tiktok employees in the U.S. to collect bulk information on users based on their views on gun control, abortion and religion, among other subjects.
- Another tool that allowed for the suppression of content on the platform based on the use of certain words. This was for users based in China, but DOJ officials said "there may be other policies that had been used to apply to TikTok users outside of China, and that heightened concern."
The government picks apart First Amendment issues raised by TikTok, per the officials, arguing:
- The divest-or-ban law does not addresses speech, but rather national security concerns around Beijing's ability to access the personal, sensitive information of Americans and manipulate the information that Americans consume.
- Foreign entities don't get First Amendment protections.
- TikTok U.S. has itself admitted it's just a conduit for the content moderation decisions made by its Chinese affiliates and can continue to operate under new ownership, the DOJ officials explaining the filings said.
In response to the other constitutional argument TikTok is making, DOJ said the law is not a bill of attainder because addressing national security concerns is not a form of punishment and bills of attainder apply to people, not corporations.
In terms of content creators, who TikTok is leaning on to make its case that speech is impacted, DOJ said:
- Burdens on them are incidental.
- They are not the ones being regulated, TikTok is.
- They don't have a First Amendment right to use TikTok as opposed to another platform that isn't owned by a Chinese company.
The government is also pointing to the recent Murthy v. Missouri decision, where the Supreme Court rejected a similar argument that people have the right to receive information from particular platforms.
TikTok spokesperson Alex Haurek said in a statement that "nothing in this brief changes the fact that the Constitution is on our side."
- "We remain confident we will prevail in court."
Editor's note: This story has been updated to include a statement from TikTok.
