Former Chairman of the House Select Committee on China Rep. Mike Gallagher on Nov. 29, 2023. Photo: Drew Angerer/Getty Images
Former Rep. Mike Gallagher told Ashley he expects his TikTok sale-or-ban law will survive its court challenge after listening to oral arguments yesterday.
The big picture: A three-judge panel will soon decide whether the legislation he co-sponsored giving TikTok a mid-January deadline to divest is constitutional.
What they're saying: "It seemed all three judges are poised to uphold the law and reject TikTok's challenge," said Gallagher, who now works in defense at Palantir.
- "They seemed particularly moved by the fact that TikTok is controlled by a foreign corporation, so the First Amendment arguments are lessened."
- "That, plus the government's citation to national security concerns, in my mind, it means the law unambiguously survives First Amendment scrutiny."
- "I think the oral argument indicated the court agreed Congress was well within its rights to force TikTok and other similar foreign adversary controlled social media companies to divest."
The big picture: The bill — which Gallagher co-sponsored with Rep. Raja Krishnamoorthi — had massive bipartisan support, quickly moved through Congress and was signed by President Biden in April.
- TikTok immediately challenged the law that requires the company to divest itself from its Chinese owner, ByteDance, or face a U.S. ban.
- TikTok's attorney argued during Monday's oral arguments that it's unprecedented for Congress to single out and try to shut down a speech forum that 170 million people use.
During the hearing, TikTok argued that many American media companies have foreign ownership and that TikTok has the right to work with whatever owner serves the product best.
- Judges pushed back that those companies' owners aren't from "adversary" countries.
- "That's the strongest part of how we drafted the bill, right?" Gallagher said. "We tied it to existing precedent for an executive order and in legislation for how you define foreign adversaries. ... We didn't just make up that definition out of the blue."
On divestment, an attorney representing TikTok creators told the court that besides simply not wanting to divest from ByteDance, doing so would be "impossible."
- Gallagher: "The fact that they continue to resist even attempting a divestiture tells us that the Chinese Communist Party has an interest in this remaining under its control, which suggests it's an instrument for propaganda and espionage."
- "I'm open to a different explanation, I just haven't seen one," he told Axios.
TikTok has argued that the government has provided no compelling evidence the app poses national security or data privacy threats.
- Judges did concede during the hearing banning the app would raise serious First Amendment concerns, and that they must ultimately weigh whether security issues outweigh those.
What's next: The three-judge panel will decide whether to uphold the law and TikTok is expected to appeal, including up to the Supreme Court, if it loses.
