A panel of three judges on the DC Circuit Court of Appeals today questioned lawyers from the Department of Justice, TikTok and its parent company ByteDance, and users of the app about the constitutionality of the Protecting Americans From Foreign Controlled Applications Act, which Congress passed and President Biden signed back in April.
Under the law, ByteDance would have to sell TikTok — a sale that the Chinese government has said is illegal under Chinese law — or see it banned in the United States as of January 19, 2025. ByteDance, TikTok, and “creators” who post on the app have challenged the law, arguing (among other things) that it violates the First Amendment.
At the oral argument, Judges Sri Srinavasan, Douglas Ginsburg, and Neomi Rao were focused largely on the recommendations algorithm that powers TikTok’s powerful For You page. The algorithm — which is the primary determiner of what videos people see on the app — is written by engineers for TikTok’s parent company, ByteDance, many of whom work from China.
Because the algorithm is the property of ByteDance — a foreign corporation — and because it is written by foreign ByteDance engineers, the government argued that it should not be protected speech under the First Amendment. Counsel for TikTok and ByteDance noted, however, that the algorithm is trained on U.S. users’ data and also influenced by decision making at TikTok Inc., which is a foreign subsidiary, but still a U.S. company with First Amendment rights.
Counsel for TikTok’s “creators” also noted both that Americans have a First Amendment right to consume foreign media, and that they have a right to collaborate with foreign corporations to create it. He analogized his clients to book authors working with a foreign editor or imprint to publish a book.
TikTok and ByteDance’s proposal to the government, known as Project Texas, would not remove Chinese control of the algorithm, although it would restrict the flow of certain private user data between the U.S. and China. Project Texas would provide for a series of audits and code reviews of the algorithm in the United States, in which U.S. actors, including engineers at Oracle Corporation, would have an opportunity to detect any malign foreign influence over the recommendations engine. Both CFIUS (the Committee on Foreign Investment in the United States) and Congress lack confidence that the audits and reviews would actually be able to detect harmful CCP control over TikTok.
At times, the judges seemed skeptical of TikTok and ByteDance’s arguments that they should apply strict scrutiny, a bruising framework that the courts apply to laws targeting certain speakers or types of speech.
Under strict scrutiny, the government must show that a speech-restricting law was passed to address a compelling government interest, and that the law is the least speech-restrictive means of achieving that interest. The judges devoted some time to debating whether a less restrictive option — a warning placed on TikTok that would tell users it may be under Chinese government control — would achieve Congress’s aim while avoiding a flat ban on the app.
Judge Douglas Ginsburg said at one point that the court may have “wasted time” debating which tier of scrutiny to apply, suggesting that it did not matter. Still, the judges also seemed doubtful of the government’s suggestion that a TikTok ban would cause only “incidental” restrictions on speech. Overall, they seemed more sympathetic to the government’s view than to TikTok’s, though the case could still go either way.
Lawyers for TikTok and the government have asked that the DC Circuit rule in the case by December 6, so that the losing party can appeal — either to the full DC Circuit en banc, or in a petition for certiorari to the Supreme Court — before the January 19 divestiture deadline. If either the DC Circuit or the Supreme Court decides to consider the matter further, the law will likely be stayed from going into effect until the appeal is decided.
