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TikTok Ban: Oral Arguments Recap – TikTok Inc. v. Merrick Garland

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Today, September 16, oral arguments were heard in the United States Court of Appeals for the DC Circuit in the lawsuit brought against the U.S. Government by TikTok, Inc., arguing against the so-called “TikTok Ban” law. Based on how things went today, it certainly doesn’t appear TikTok is on track to receive an outcome in its favor.

The lawsuit, filed back in May, challenges the legality of the Protecting Americans from Foreign Adversary Controlled Applications Act, which prohibits foreign adversary controlled applications by requiring a divestiture of Chinese ownership, specifically calling out TikTok. TikTok largely focuses its argument on its position that the law is unconstitutional as a violation of the First Amendment.

This case is particularly interesting because it was consolidated with another case (Firebaugh v. Garland) that was brought by eight TikTok creators against the U.S. Government. Here’s a list of the eight along with a description of their content, pulled from the Petitioner Brief filed in June 2024:

  1. Brian Firebaugh – a first-generation rancher and U.S. Marine Corps veteran, educates the public about agricultural issues, promotes his ranch and products, and helps the ranching community through charitable endeavors.
  2. Chloe Joy Sexton – creates videos about parenting, mental health, and the cookie business that the platform enabled her to launch.
  3. Talia Cadet – shares book reviews and promotes Black authors and Black-owned-businesses.
  4. Timothy Martin – a football coach, makes sports-commentary videos and connects with other fans and former athletes
  5. Kiera Spann – advocates for the rights of sexual-assault survivors, shares information about books, news, and politics, and encourages political and social advocacy.
  6. Paul Tran – posts information about his skincare company, documents memories with his daughter, connects with other dads, follows martial arts, and researches travel and restaurants.
  7. Christopher Townsend – a U.S. Air Force veteran, shares music he writes and produces, posts light-hearted videos quizzing people on their biblical knowledge, and participates in “Conservative Hype House” on TikTok, which discusses and debates views on current events from a conservative perspective.
  8. Steven King – creates humorous content about his daily life and spreads awareness about LGBTQ pride, self-confidence, and sober living.

The opening arguments were kicked off by Andrew Pincus, Partner, Mayer Brown LLP, representing the TikTok Petitioners. Next, Jeffrey Fisher, a professor at Stanford Law School and Co-Director, Supreme Court Litigation Clinic, followed with his arguments representing Creator Petitioners. Lastly, the U.S. government, represented by Daniel Tenny, an attorney with the Appellate Staff of the Civil Division of the U.S. Department of Justice (DOJ).

The Circuit Judges hearing the arguments today were Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas Ginsburg.

It was evident from the first part of the arguments, with TikTok’s representative Pincus, that the judges were having issues with strict scrutiny being the appropriate level of review, as TikTok’s counsel argues.

For purposes of this article, and to avoid confusion: references to TikTok usually mean generally the whole company, except when I try to reference the US entity or ByteDance when it is relevant for context; references to Creators means the eight TikTok creators that are part of the lawsuit.

Each Party’s Main Arguments

The main argument by TikTok: TikTok’s main argument centers around the assertion that the Act is an unconstitutional infringement on First Amendment rights, both for the U.S. company entity (which it declares is a US speaker) and its users, subject to a strict scrutiny analysis. They frame the Act as a thinly veiled ban on their platform, disguised as a divestiture requirement, and argue it lacks sufficient justification while imposing a disproportionate burden on free speech.

The main argument by Creators: First Amendment rights of American speakers (as the creator users of the platform) to speak, associate, and listen to free expression of information and ideas are impacted, which should be considered independently of TikTok’s interests in the case. Interestingly, Fisher argues that upholding the constitutionality of a law such as this TikTok ban could impact the ability of American creators to distribute music on Spotify (Swedish-owned), articles on Politico (German-owned), or news reporting on Al Jazeera (partially owned by government of Qatar).

The main argument by the U.S. Government: TikTok gathers immense data which is commercially valuable, but also valuable to a foreign adversary like China. Knowing the patterns of Americans, including who their contacts are, where they go, what content interests them and disinterests them, would be immensely valuable to a foreign adversary trying to influence Americans. This data security rationale underlines the Act, rather than an attempt to interfere with the freedom of speech by Americans.

Who’s Speaking?

A lot of the discussion focused on who’s speech was being suppressed: TikTok US, ByteDance, Creators, or Consumers?

TikTok and ByteDance argue that the Act will silence the 170 million Americans that use the platform. As a platform, they argue that the Act prevents TikTok US from engaging in editorial and publishing functions protected by the First Amendment, even under a hypothetical divestiture scenario.

The U.S. Government argues that foreign entities, specifically foreign governments and companies operating abroad, do not possess First Amendment rights. More specifically, they argue that China, as a foreign state, and ByteDance and TikTok Global (which are classified as “foreign organizations operating abroad”) have no First Amendment rights. Even if they did, the U.S Government argues it’s in the national interest to prevent potential manipulation of data and information that the companies oversee.

This question of whether a U.S. company loses its First Amendment protection because of foreign ownership is central to the arguments presented by both sides. The U.S. government asserts that this is the case, while TikTok argues that a U.S. company retains its First Amendment rights even with foreign ownership.

Another issue raised surrounded protection of content creator speech. Content creators speech is impacted, but it’s arguably not a direct impact because they would have other platforms and avenues for distributing their content. TikTok US and ByteDance may come to an agreement if there’s a ban instead of having the platform disappear, as Tinney noted.

But, as Fisher argued, there are nuances around the benefits that TikTok as a platform brings to Creators that haven’t been achievable on similar platforms. Creators argue that the Act essentially takes away a unique platform that has become their preferred medium and forum for reaching their audience, building communities, and earning income.

The Creator argument gets creative. They maintain that the Act’s burden on their speech is not incidental, but rather a direct result of Congress’s goal to suppress speech it deems potentially harmful or suppressing particular viewpoints. This is where the concept of “content manipulation rationale” comes into play.

The U.S. Government argues that the Act is necessary to prevent the Chinese government from covertly influencing the content seen by American users on TikTok. This rationale centers on the assertion that China could manipulate TikTok’s recommendation algorithm to promote or suppress specific viewpoints, thereby shaping public discourse and potentially interfering with U.S. elections.

However, in addition to an alleged lack of evidence that’s been publicly made available, TikTok and Creators argue the content manipulation rationale masks a deeper attempt to suppress viewpoints that the government (and Congress) finds objectionable, particularly those perceived as sympathetic to China or critical of the U.S. government.

Where’s the Curation Happening?

I couldn’t find or recall much in the briefs that are part of the public record that showed any of the parties focused on where the curation was taking place. However, the question came up with Pincus during the start of the arguments under the premise that because the content algorithms are developed in China it then can be concluded that the curation is happening in China and not the U.S.

“It’s a foreign entity abroad, who is engaging in the curation, that’s causing the content manipulation that you highlighted,” Judge Srinivasan pushed back early on.

Pincus highlighted the lack of any specific foreign manipulation evidence presented by the U.S Government, and instead of focused on potential future risk. Additionally, he argued that the evidence indicates that the content curation is happening in the U.S., not outside of it.

Judge Ginsburg pushed back arguing that Project Texas details indicate that curation is happening both in the U.S. and in China. Pincus responded that U.S.-based employees review the recommendation engine algorithm, which does originate from China, after it has gone live. Additional modifications to the recommendation algorithms and curation engines can be done by U.S.-based employees that are largely focused on content moderation based on guidelines set by the U.S. entity.

On the topic of code development happening in China, Judge Rao also points to reports that it would take upwards of 3 years to review the source code, not including updates that continue to be made going forward. Tenny notes that it is built in China where no one is looking at the 2 billion lines of code that’s 40x larger than the WindowsOS as it is changing thousands of times a day.

For the curation focus, a key questions is: How is this different than the NetChoice v. Moody case that went before the Supreme Court this summer?

The Judges seemed to agree on an explanation that a key difference is that the content curation is happening abroad by a foreign organization, which would not have the First Amendment right to object to a regulation of their curation (see above).

Tenny also reiterates this later in the session for the U.S Government’s viewpoint that NetChoice can be distinguished because TikTok involves a foreign adversary making content algorithm decisions, not a U.S. company.

A Trail of Ownership to a Foreign Adversary

Another focus for the Judges during the session was how the U.S. Government argues it’s actually feasible that TikTok, as a U.S.-based and operated entity, will be able to maintain operation if it simply has a divestiture of ownership by China. Divestitures is infeasible, according to TikTok. It also argues that assuming divesting was feasible, such action creates a burden (financially and otherwise) on TikTok to practically and technically implement a disconnect from the Chinese parent company.

Pincus explained that TikTok, Inc., owned by ByteDance Ltd., is a U.S.-based entity and therefore speaker for purposes of the First Amendment. However, the Judge was still focused on the ownership interest traced back to China, regardless of whether it’s direct or through a series of organizational structures.

At one point, Pincus makes an argument that the distinction between ownership and control by a foreign entity should be considered. Among the points made are that: (1) TikTok US is actually a U.S.-based entity and the entity responsible for the platform’s operation in the U.S.; (2) the recommendation algorithm is operated in the U.S. on Oracle servers by U.S. employees; and (3) TikTok US has separate editorial discretion and control.

During the oral arguments, a lot of the focus was also placed on how the Act fails to adequately consider the nuances of ownership and control, potentially capturing entities that operate independently despite having some degree of foreign ownership.

Along the same topic, during the Creators portion of the oral argument, Judge Rao pushed back on Creators counsel Fisher’s position that the Creators have an interest in TikTok US being owned by ByteDance. He responded that the Creators’ “interest is in working with a publisher and editor of [their] choice, including the current ownership that works very well for our creators.”

It can get confusing because Fisher argues that TikTok is ultimately the “publisher” and therefore triggers a First Amendment issue for Creators. TikTok has also argued itself from the position of a publisher, and the U.S. Government hasn’t really pushed back on this approach either.

Judge Rao references Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988), which wasn’t cited by the Government, but she brings up to explain this Circuit had previously held that a Palestinian-controlled entity in the U.S. (the PIO entity) could be shut down by the State Department in part because of the entity’s affiliation as a foreign mission of the PLO and the foreign policy concerns it brought.

The PIO case is similar in that there are other opportunities and platforms, as the Court noted in that 1988 decision, for creators and others to exercise their right to free speech.

Problems with Specifically Targeting TikTok

TikTok argues that strict scrutiny is the appropriate threshold for evaluating the legislation because it believes the Act directly targets protected speech and discriminates against the company and its users.

In support of the viewpoint and content discrimination claims, Pincus points to the legislative record that indicates that legislators were motivated by an alleged imbalance in the content prioritized by the algorithms, such as content on the Israel and Hamas conflict or views of a particular political party.

However, the Judges seem to be tied up in the unique nature of TikTok’s ownership structure, which isn’t similar to any other company operating in the U.S. right now. (see section above)

At the start, Tenny spent a lot of time focusing in on the national security concerns that arise from foreign ownership and control, which served as the foundational argument in support of the Act not being a content-based regulation (and therefore, not subject to strict scrutiny).

Hysterically, at one point Pincus, while giving a hypothetical example, said, “Here is platform ‘X’. We [the U.S. government] think they are subject to control by Russia.” This example made me chuckle because I don’t think he was literally referring to the platform X (formerly Twitter) or the numerous issues surrounding how it operates.

The Creators, who are supportive of the issue that the Act specifically targets TikTok, point out the Act instead needs to be addressing the broader issue of content moderation on social media platforms.

The elephants in the room remained retail marketplaces Temu and Shein, which fall within the ban’s exception for ecommerce platforms, and were heavily referenced numerous times without being specifically named.

What’s Next?

We’ll be waiting for a decision to come from the panel of judges on whether to uphold the Act (in whole or in part) or strike it down.

Regardless of the outcome, the decision will most likely be appealed to the U.S. Supreme Court, so the battle isn’t over at this stage. TikTok is most likely to appeal any upholding of the Act by arguing that the court erred in its interpretation of the First Amendment and other laws on which the lower courts have based their opinions.

The clock continues to tik-toc* towards January 19, 2025, which is the date the platform is set to be banned in the U.S., unless there is a surprise last-minute divestiture by TikTok US’s Chinese owners.

*sorry, I couldn’t help myself.


The case is TikTok Inc. v. Merrick Garland, 24-1113, (D.C. Cir.), filed on May 7, 2024. See also the full text of the Protecting Americans from Foreign Adversary Controlled Applications Act.

The Circuit Court’s YouTube channel apparently doesn’t allow embeds, so click here to jump right to the start of the oral arguments for this case.

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