TikTok faces skeptical judges in court fight over looming national ban

The fate of the wildly popular TikTok app hangs in the balance after the company tried to persuade a Washington appeals court Monday to halt a fast-approaching ban on the platform’s use across America.

A deep legal discussion over the potential ban’s constitutionality Monday morning offered no clear answers, leaving the company’s fate uncertain even as it nears a Jan. 19 deadline to divest from Chinese ownership, with a ban coming into place if it hasn’t done so by that date.

The political backdrop is striking: Vice President Kamala Harris and former president Donald Trump are both seizing on the viral short-video platform to vie for young voters, even though both the Trump and Biden administrations backed banning it.

In Monday morning’s hearing in federal D.C. Court of Appeals, the panel of three judges - Chief Judge Sri Srinivasan and Judges Neomi Rao and Douglas H. Ginsburg - grilled TikTok attorney Andrew Pincus on why he thought the company’s right to free speech outweighed national security concerns over its ownership, citing wartime precedents of the United States curbing the broadcast of foreign propaganda into America.

The judges pressed Pincus on a hypothetical scenario involving a war between the United States and a foreign country, asking whether Congress would be within its right to bar “the enemy’s ownership of a major media source” - in line with Congress’s designation of TikTok and other China-based apps as controlled by a “foreign adversary.”

They also cited the government’s concern over how ByteDance developers in China could curate TikTok’s recommendation algorithm for American users.

Pincus argued that ByteDance, TikTok’s parent company in China, is a private company, not a state-owned enterprise, and that the United States isn’t at war with China. The judges didn’t seem wholly convinced. Ginsburg called Pincus’s parsing of the level of Beijing’s influence over ByteDance “quibbling.” Rao said Pincus’s criticism of Congress’s rationale for passing the sale-or-ban law required a “very strange framework for thinking about our first branch of government.”

But the judges also seemed sympathetic to TikTok’s argument that the government’s restriction of a speech platform could violate Americans’ speech protections.

“This case is American speakers … who want to speak to other Americans,” Jeffrey Fisher, an attorney representing a group of TikTok creators who also joined the case against the government, told the court.

The judges appeared skeptical of some of the Justice Department’s arguments, quizzing prosecutor Daniel Tenny on why freedom of speech protections would not kick in for TikTok’s U.S. unit. Srinivasan noted that there would be “serious First Amendment concerns” if it were a similar case involving a purely domestic company.

The judges even floated a new idea, asking whether adding a disclaimer warning that the Chinese government could influence the app would have resolved Congress’s concerns. TikTok has argued that the sale-or-ban law was not the least restrictive way to resolve federal concerns about the app, and TikTok’s attorney said the disclosure idea was preferable to a ban.

While the hearing presented a window into the judges’ thinking, it was unclear how they will rule. The two sides have requested an expedited judgment by December, allowing time for a potential appeal to be filed with the Supreme Court before Jan. 19.

A Pew Research Center survey last month found that support for a TikTok ban among adults in the U.S. had fallen from 50% last March to about 32% today; fewer than half of Republicans surveyed support a ban. Even among people who don’t use TikTok, more said they’re uncertain about a ban than supported one outright.

Three TikTok content creators - Talia Cadet, Paul Tran and Kiera Spann - who also sued the Justice Department, saying the ban violates their First Amendment rights, attended the hearing.

Tran, who runs a skin care company called Love and Pebble, said a TikTok ban would be a “devastating blow,” as he and his wife have not found a similar sense of community on other platforms.

TikTok was launched in 2017 as the internationalized version of Douyin, a short-video app in China that had become a smash hit after its 2016 release. TikTok’s interface is similar to Douyin’s, except that it is in English instead of Chinese, and both are owned by ByteDance. As foreign government officials began raising concerns about users’ data being sent to China, ByteDance has increasingly disaggregated TikTok’s operations. It says American users’ data is currently stored in the U.S. and firewalled from the company’s Chinese operations.

These precautions have not quelled concerns. As president in 2020, Trump called TikTok a national security threat, and in April, President Joe Biden signed the TikTok law after it was passed overwhelmingly by Congress with bipartisan support. While the White House says it prefers to see TikTok choose new ownership instead of being banned, TikTok says such a fast divestiture is “not possible,” making it a de facto ban.

TikTok filed a legal challenge against the Justice Department in May, calling the law a violation of the First Amendment, with a group of TikTok creators following soon after with their parallel suit. U.S. officials have argued that national-security considerations of TikTok’s foreign ownership outweigh any free speech arguments.

Under the law, TikTok can avoid a ban if ByteDance sells the app to non-Chinese owners before the January deadline. The president may extend this deadline by 90 days if TikTok is making progress on a sale - a decision that may fall to Biden’s successor.

A sale by January would be highly challenging, because of TikTok’s massive price tag of potentially more than $100 billion, and the short window for completing such a geopolitically sensitive deal.

In addition, China said it would ban the sale and export of one of TikTok’s most critical components, its recommendation algorithm.

Meanwhile, both the Harris and Trump campaigns are continuing to use TikTok to reach millions of voters - even though government officials have been largely prohibited from using the app on federally owned devices for security reasons since Biden signed the measure into law in 2022. Trump, Harris and their running mates, JD Vance and Tim Walz, all have personal TikTok accounts that post political talking points and scenes from the campaign trail.

TikTok counts among the platforms with the broadest reaches for both campaigns, each of which pays Generation Z social media strategists to make videos they hope will go viral. Trump’s 11 million TikTok followers eclipse his 7.7 million follower count on Truth Social, the main social media network he now uses. Harris has 5 million followers on TikTok, with her posts gaining similar numbers of impressions there as they do on X.

A TikTok ban could result in political blowback from a small economy of content creators that produces a $24 billion chunk of U.S. GDP, as well as from TikTok’s estimated 170 million U.S. users.

Trump’s position on TikTok has shifted. He led the first major crusade to ban or force the sale of TikTok in 2020. But that effort was blocked in court, and Trump advisers have said his interest had wavered even before then, after he was told that internal polls showed a ban could hurt his election chances.

Since then, Trump has become one of the app’s few defenders in the top ranks of the Republican Party. In March, he said in a TV interview that a ban would help Facebook, which he labeled “an enemy of the people,” and that “young kids on TikTok would go crazy without it.” In June, after some internal debate, he joined the app with a video saying, “It’s my honor.”

Online, Trump has portrayed himself as a savior of the Chinese-owned video app - including in a campaign-stop video on his TikTok account, during which he held up a framed portrait of himself and said, “I’m gonna save TikTok.”

“For all of those who want to save TikTok in America, vote for Trump,” he said in a video monologue last week on Truth Social. “The other side is closing it up, but I’m now a big star on TikTok.”

When Harris joined the app on a personal account in July, she made a reference to the wave of adoration she’d gained on the app after Biden’s withdrawal from the race. “I’ve heard that recently I’ve been on the For You page, so I thought I’d get on here myself,” she said in her debut.

TikTok has referred to these accounts in its legal briefs, arguing they undercut the government’s warning that the app represents an urgent national threat.

In March, the vice president said the administration did not “intend to ban TikTok” but thought divestment was necessary, even as she spoke of the app’s upsides.

Matthew Schettenhelm, a legal analyst for Bloomberg Intelligence, said in a note Monday that he considered TikTok had only a one-in-three chance of overturning the law, given the skepticism the judges expressed toward their arguments. He added that “a long-shot Supreme Court plea (was their) only realistic legal option.”