Cely Reyes, 11th Grade

In a high-stakes legal fight, TikTok of China has gone to a federal court in the U.S. to challenge the constitutionality of a law that could lead to its being banned if it does not sell its ownership by its Chinese owner, ByteDance. After the January 2024 deadline, this puts TikTok’s arguments as free speech issues and that up to 170m American users could lose access. The case with national security concerns swinging the U.S. government’s position raises an essential question: Is there a legitimate national security reason for which digital free expression may be ignored?

More broadly, the central argument in all Amicus Briefs is that a federal order blocking TikTok would violate U.S. users’ First Amendment rights. In a filing in federal court, TikTok’s legal team argued that the law represents an unprecedented infringement on digital speech and effectively silences millions of voices — while crippling their earnings. In oral arguments, attorney Andrew Pincus also indicates the U.S. government has not shown specific action by ByteDance to justify its national security risk claim, and Phelan said she views Trump’s ban as “a prohibited blanket general ministrative response to hypothetical risks rather than preceded by a careful fact-based investigation.”

The free speech clause in the First Amendment of the U.S. Constitution guarantees the right to free speech which includes digital media in a dissemination platform. It’s that TikTok, a platform with an abundant U.S.-based user base enables this exchange of ideas by encouraging the creation of content that encourages users to express themselves, connect with others in meaningful ways, or even get paid for their hard work. The closure of TikTok or a sale would inhibit the digital tranquility of millions, not infrequently followed by light in some cases for economic purposes and social. Consequently, a ban infringes the rights of US citizens.

Once again, TikTok points out that other foreign-owned platforms operating in the U.S., such as Politico and Business Insider are not held to the same standards. As in a court appearance, Attorney Pincus brought this to light by explaining that the control should not be regulated by private ownership. In addition, TikTok’s reorganization, known as ‘Project Texas,’ is designed to protect U.S. data from any actions that ByteDance would take in China. However, these efforts aside, the law in question continues to single out TikTok without any proof of wrongdoing or national security breaches including in unredacted government submissions regarding this very matter.

TikTok’s critics have maintained that national security concerns should override any free speech overtures. The U.S. Department of Justice has argued that TikTok’s ownership by the China-based ByteDance poses a national security threat, and allows for foreign influence over US media. That the Chinese government could meddle with SkyNet, or more publically use TikTok to disseminate pro-China narratives and exploit user data for espionage is a concrete threat. For opponents, this risk alone justifies a ban as ensuring the nation’s security trumps simply allowing large amounts of digital expression without limit.

While national security is vital, supporters of TikTok argue that the government has not proven a compelling case for Chinese interference through its platform. Circuit Judge Sri Srinivasan appeared skeptical of the argument, noting that users themselves are selecting what content they view on the app and that a ban would wrongfully take away their choice. The measures TikTok is taking here to restructure and resolve the security fears are enough to ensure that such a ban would be an overreaction. Future hypothetical risks should not preemptively shut down a platform that allows free speech on this scale.

The legal battle between TikTok and the U.S. government reflects a basic dilemma about how to balance national security with free speech. However, even though security concerns are well-established facts we do not have enough evidence to be skeptical about TikTok even that much, and perhaps the ban on their app is a little overboard. The case could go to the Supreme Court, and if it does, it would set a powerful example of how governments respond to digital platforms and expressions of freedom. In the end, TikTok’s case for defending the speech of 170 million U.S. users, might finally change the way we talk about tech regulation in this digital era.

Bibliography:

Allyn, B. (2024, September 17). TikTok argued against its U.S. ban in court today. Here’s what happened. Opb; OPB. https://www.opb.org/article/2024/09/17/tiktok-argued-against-its-u-s-ban-in-court-today-here-s-what-happened/

Jamali, L. (2024, September 15). TikTok says US ban would have “staggering” impact on free speech. Bbc.com; BBC News. https://www.bbc.com/news/articles/c5y3y79llndo

Milmo, D., & Bhuiyan, J. (2024, September 16). Threatened US ban against TikTok “unconstitutional”, platform argues. The Guardian; The Guardian. https://www.theguardian.com/technology/2024/sep/16/threatened-us-ban-against-tiktok-unconstitutional-platform-to-argue

Maguire, P., MacFarlane, S., & Hubbard, K. (2024, September 16). Legal battle over potential TikTok ban goes before federal appeals court. Cbsnews.com; CBS News. https://www.cbsnews.com/news/tiktok-ban-appeals-court-arguments/