TikTok filed a lawsuit on May 7 to block a new law requiring either the sale of the app by its Chinese parent company or its removal from app stores and web-hosting services. About two weeks ago, President Joe Biden signed the bill, which had passed both legislative chambers with broad bipartisan support.
In a filing with a federal appeals court in Washington, TikTok challenges the constitutionality of the new law on the grounds that the U.S. government infringed the First Amendment rights of TikTok and its hundreds of millions of users over national security concerns.
The new law sets the initial deadline for a TikTok sale by January 2025, and President Biden can decide to extend the deadline by another three months to allow the deal to be completed.
Lawmakers supporting the new law argued that it was not a ban but a divestiture aimed at preventing the Chinese Communist Party (CCP) from accessing U.S. consumer data and the algorithm owned by TikTok’s Chinese parent company, ByteDance, from potentially influencing Americans.
TikTok has called the bill, and later the new law, a ban.
“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than one billion people worldwide,” TikTok said in its petition to the U.S. Court of Appeals for the District of Columbia Circuit.
“There is no question: The act will force a shutdown of TikTok by Jan. 19, 2025.”
ByteDance has said that it won’t sell TikTok.
Alex Urbelis, general counsel for the Ethereum Name Service, a blockchain services company headquartered in Singapore, represented TikTok employees challenging the Trump administration’s executive order to ban TikTok in 2020.
He said that the lawsuit is essentially free speech versus national security. The federal appeals court in Washington specializes in cases challenging U.S. laws. Mr. Urbelis’s reading is that judges there usually don’t want to second-guess a bill that Congress passed and the president agrees with.
Congress obtained its national security justifications from classified intelligence briefings, as Sen. Mark Warner (D-Va.) explained at the Senate debate on April 23, right before the TikTok bill was passed as part of the foreign aid package.
“National security concerns are always very difficult to litigate in a lot of ways because the courts will very often defer to congressional findings and the president’s powers to conduct foreign affairs when it comes to national security issues,” Mr. Urbelis told The Epoch Times.
“So you have a lot of inherent expertise in Congress and power from the executive that the judiciary does not very often see as its job to disturb.”
He said the court would have to pit two compelling legal concepts against each other: free speech and national security. According to him, while the national security concerns are well-founded, the core issues will be the trade-off between free speech and national security and whether the law has to be written in the current fashion.
“TikTok’s legal challenge is no surprise. As I think the DC Circuit will see; however, the law does not amount to a ban of the service, but rather an effort to address its foreign ownership—rooted in decades-long national security interest in ensuring that core communications infrastructure is not vulnerable to foreign manipulation.” Mr. Warner told The Epoch Times in an email.
Rep. John Moolenaar (R-Mich.), chairman of the House Select Committee on the CCP, told The Epoch Times: “Congress and the Executive Branch have concluded, based on both publicly available and classified information, that TikTok poses a grave risk to national security and the American people.
“It is telling that TikTok would rather spend its time, money, and effort fighting in court than solving the problem by breaking up with the CCP. I’m confident that our legislation will be upheld.”
The China panel’s former chair, Rep. Mike Gallagher (R-Wis.), introduced the TikTok bill in the House and was a major force behind its passage.
Sen. Brian Schatz (D-Hawaii ) told The Epoch Times: “A forced divestiture is not a shutdown. If ByteDance doesn’t want TikTok to be shut down in America, all they have to do is sell it for [a] gobsmacking amount of money.”
