TikTok Goes to Court
The U.S. Court of Appeals for the District of Columbia Circuit heard TikTok’s defense on Monday, as the social media company sought to persuade the three-judge panel that Congress’s attempts to ban the platform are a violation of the First Amendment.
It’s not clear that the judges were persuaded. Judge Neomi Rao, a Trump appointee, and Judge Douglas Ginsburg, a Reagan appointee, both seemed skeptical of TikTok’s argument that Congress lacked the authority to force a sale of the app to a U.S.-based company.
“I know Congress doesn’t legislate all the time, but here they did,” said Rao. “They actually passed a law. And many of your arguments want us to treat them like they’re an agency.”
The federal government’s initial attempts to ban TikTok took place under the Trump administration. In August of 2020, President Donald Trump issued an executive order that required TikTok’s Chinese-owned parent company, ByteDance, to sell the app to a U.S.-based firm. President Joe Biden cancelled that executive order, but instructed his administration to investigate whether concerns about Chinese malfeasance on the platform were justified.
Then, in March of 2024, Congress passed legislation to again force the sale, and Biden signed it. Trump has since changed his tune on TikTok, and now claims—not wrongly—that banning TikTok would reduce competition and enhance Meta’s dominance.
But unless TikTok prevails in court, the app will be banned by the end of the year unless it finds a U.S. buyer. Failing that, the iPhone app store will be forced to stop updating, and eventually carrying, the app. That’s the real First Amendment question at stake: Can the U.S. government prohibit Americans from creating, viewing, and engaging with the speech on the platform?
“The speech on TikTok is not Chinese speech,” said Jeffrey Fisher, an attorney for TikTok, during the Monday hearing. “It is American speech.”
U.S. actors who claim that TikTok is a national security threat have generally failed to explain precisely what they mean, though it is of course possible that the Chinese government—a repressive, authoritarian regime—uses its influence over the company to promote propaganda or anti-American speech. That’s bad, but censoring propaganda isn’t the answer; let people view it, if they wish to.
Sen. Rand Paul (R–Ky.) has called the TikTok ban a “disturbing gift of unprecedented authority to President Biden and the Surveillance State that threatens the very core of American digital innovation and free expression.” He’s exactly right. The federal government cannot be trusted with the authority to police social media platforms. We already know what federal bureaucrats will do with such power: use it to censor contrarian and provocative s
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