Illustration: Aïda Amer/Axios
TikTok's attorney argued that it's unprecedented for Congress to single out and try to shut down a speech forum that 170 million people use during oral arguments before a Washington appeals court on Monday.
Why it matters: TikTok's future is hanging in the balance, with a three-judge panel set to decide whether Congress' sale-or-ban law is constitutional.
- The Justice Department and TikTok have asked the U.S. Court of Appeals for the D.C. Circuit for a ruling by early December in order to seek a review from the Supreme Court before the law's mid-January deadline to sell.
- During Monday's oral arguments, the company's lawyers cited lawmaker complaints about specific content on the app, saying that was their motivation for passing the divestiture law.
- Those comments prove the law is taking aim at First Amendment protected speech, instead of national security concerns, according to TikTok lawyer Andrew Pincus.
TikTok has to first prove this case is about the First Amendment so it benefits from the strict scrutiny standard that would make it harder to force a company to sell because of national security justifications.
- Pincus said that the app isn't owned by China, and DOJ is raising alarms about a hypothetical threat of Chinese control.
- Indeterminate future risk is not a good enough reason to restrict speech, he said.
- Pincus noted there are many public entities like Politico and Business Insider that are owned by foreign entities and operate in the U.S. freely, to which a judge implied a foreign entity is different from a foreign adversary.
What they're saying: "Congress doesn't legislate all they time, but here they did, they passed a law," Judge Neomi Rao said, noting it seemed like Pincus may be treating Capitol Hill like an agency establishing a new rulemaking.
- TikTok has been targeting the process by which they believe the law came about, but legislating on the Hill tends to be messy and often happens behind closed doors.
- Pincus took issue with Congress' approach, including holding those closed-doors meetings, not considering options like a disclosure mechanism and tying the law to current events.
- Lawmakers counter that they have been talking about taking action against TikTok for years, met privately because classified information was being discussed and have held public hearings.
Rao pressed Jeffrey Fisher, a lawyer for TikTok creators, on why people couldn't keep expressing their First Amendment rights on the platform under new ownership.
- Fisher said they have a First Amendment right to work with the publisher of their choosing, the same way anyone can choose to work with Elon Musk-owned X or Rupert Murdoch-owned Fox News.
- Fisher argued something TikTok has said before — that divestiture would be "impossible" — and that ByteDance ownership gives TikTok users key tools and exposure to audiences.
DOJ lawyer Daniel Tenny said the government's core point is the same one TikTok has conceded: that the relevant activity in this case takes place in China.
NetChoice v. Moody, a case in which the Supreme Court found that though corporations have First Amendment rights, corporations located abroad do not, came up repeatedly.
- That case is expected to inform justices if they decide to take up the TikTok lawsuit.
The big picture: Both parties were relying on hypotheticals to argue for or against the law, with the DOJ saying China is an adversary that could manipulate Americans via TikTok content, and the app maintaining that ByteDance ownership would never pose a threat.
