TikTok

TikTok fights ban in court as Harris and Trump campaigns embrace the app

Author: Eva Dou and Drew Harwell Source: The Washington Post

September 16, 2024 at 14:09

TikTok's headquarters in Culver City, Calif. (Damian Dovarganes/AP)

A Washington appeals court heard oral arguments Monday from TikTok and the Justice Department on whether a ban of the app violates the First Amendment.

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 sale-or-ban deadline.

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. A new law seeks to force TikTok to divest from Chinese ownership, with a ban coming into place Jan. 19 if it has not been sold by then.

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.

The prominence of TikTok in the election speaks to its increasingly central place in American public life — precisely the reason Washington security hawks fear that its Chinese ownership could pose security risks, if its databases are infiltrated by hackers or if content is influenced by foreign propaganda.

But 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. Banning a popular media platform also runs contrary to cherished American free speech values.

“In matters of national security, as elsewhere, courts must rigorously scrutinize government restraints on speech to ensure protection of First Amendment rights,” TikTok argued in a brief to the court ahead of the hearing.

The Justice Department has told the court in its brief that “nothing short of severing the ties between TikTok and China could suffice to mitigate the national-security threats posed by the application.”

The government and TikTok each presented their oral arguments Monday morning before a panel of judges at the federal D.C. Court of Appeals. 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.

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 in a statement ahead of the hearing that a TikTok ban would be a “devastating blow” to their small business, and that he and his wife have not been able to create 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 the China-based company 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 off 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, raising questions of whether a new version of TikTok would need to be rebuilt from scratch.

The case pits the First Amendment against the United States’ Cold War-esque rivalry with China, which could last for many years. There are few precedents of such curbs against a specific media platform in the U.S., with legal scholars reaching back decades to wartime measures for parallels.

Those sympathetic to TikTok remaining available in the United States say the U.S. government has failed to present, at least in public, evidence that the app is a security threat. TikTok, they insist, should be viewed as innocent until proven guilty.

Security hawks in Washington argue that action should not have to await proof of a lapse, and that the granular data about users that is collected by TikTok would likely be targeted by Chinese intelligence services sooner or later.

Meanwhile, both the Harris and Trump campaigns are continuing to use TikTok to reach millions of voters — a slightly awkward fact since 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.

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.

“We have national security concerns about the owner of TikTok, but we have no intention to ban TikTok,” she said in an ABC interview. “It’s an income generator for many people, what it does in terms of allowing people to share information in a free way, in a way that allows people to have discourse — it’s very important.”

Matthew Schettenhelm, a legal analyst for Bloomberg Intelligence, said if TikTok loses its case at the appeals court, it could seek a stay of the ban from the Supreme Court as it pursues a further appeal. If the appeals court does rule in favor of TikTok and strike down the ban as unconstitutional, he added, the next president could decide whether the government would pursue a renewed push against TikTok.

A Pew Research Center survey last month found that support for a TikTok ban among adults in the U.S. had fallen from 50 percent last March to about 32 percent today; less 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.