TikTok is fighting for its life in US court — and it’s on track to lose, former DOJ official says

“It was just very clear from the very beginning that the court is just deeply uninterested in stretching the law to help TikTok here,” Alan Rozenshtein, a former Justice Department official and current associate professor at the University of Minnesota Law School, told Business Insider.

Rozenshtein said that he believes the appeals court will rule “decisively” and “comprehensively” against TikTok.

“This is pretty in the bag for the government,” said Rozenshtein, who like other experts, believes the case will ultimately reach the US Supreme Court.

TikTok and a group of content creators filed separate lawsuits in May against the US government, arguing that the law, which President Joe Biden signed in April, violates users’ First Amendment rights.

The law gave TikTok’s Beijing-based parent company, ByteDance, nine months to sell its US operations of the video-sharing platform to a non-Chinese company or be booted from app stores.

Biden signed the law — framed as addressing TikTok’s potential threat to national security — as part of a foreign aid package and multi-year bipartisan push to break TikTok away from ByteDance.

The main concern among government officials is that TikTok could be compelled to hand over data on US users to the Chinese Communist Party. Others worried that TikTok — which said it reaches 170 million Americans each month — could become a propaganda tool for the Chinese government.

US officials haven’t presented evidence to the public that either concern is happening, though Congress may have seen classified information in briefings that swayed them to vote for the legislation.

TikTok’s lawyer argued the law ‘imposes extraordinary speech prohibition’

In his oral arguments on Monday, TikTok lawyer Andrew Pincus slammed the law as “unprecedented.”

“Its effect would be staggering,” Pincus said. “For the first time in history, Congress has expressly targeted a specific US speaker, banning its speech and the speech of 170 million Americans.”

Pincus argued that the law is unconstitutional and said it “imposes extraordinary speech prohibition based on indeterminate future risks.”

“No compelling reason justifies Congress acting like an enforcement agency and specifically targeting petitioners,” he said.

The panel of judges, at times, seemed skeptical of TikTok’s arguments. They pressed Pincus about TikTok’s China ties and asked whether Congress could bar a foreign country’s ownership of a major media source in the US if the US were “at war” with the country.

Pincus argued that there would still be a First Amendment issue.

Rozenshtein told Business Insider, “The problem for TikTok is, every time the word China is said, that makes it worse for TikTok, and the word China was said a lot of times by the judges.”

Justice Department lawyer Daniel Tenny, in his oral arguments, said that the data that TikTok collects from its users is the same data that is “extremely valuable to a foreign adversary trying to compromise the security of the United States.”

TikTok has repeatedly denied allegations that it has ties to the Chinese Communist Party.

Sarah Kreps, a political scientist and director of the Tech Policy Institute at New York’s Cornell University, told Business Insider that the judges sounded more “skeptical” of TikTok’s arguments, “but also raised important questions about the First Amendment, foreign influence, and standards of scrutiny that I do not think were clearly resolved with today’s exchanges.”

“After listening to the oral arguments, I am more convinced that this case will end up in the Supreme Court,” Kreps said. “The fundamental challenge that emerged is that it is difficult to pinpoint precedent because of how this particular type of technology and ownership arrangement intersects with free speech versus national security.”

Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University — which has filed a legal brief in support of TikTok — also told Business Insider that he doubts the federal appeals court will be the last stop for the case.

“Today’s argument confirmed what we already knew — that a ruling upholding the TikTok ban would do profound damage to our democracy, and to the First Amendment, by giving the government sweeping power to restrict Americans’ right to access information, ideas, and media from abroad,” Jaffer said.

Jaffer added that there are “very good reasons to be concerned about foreign disinformation campaigns and the data-collection practices of social media platforms, but the appeals court should make clear that Congress must address these concerns by passing transparency and privacy laws rather than by restricting Americans’ First Amendment rights.”

Support for a TikTok ban among Americans has faded over the past year and a half. While one in two US adults supported a TikTok ban in March 2023, now just 32% say they favor it, according to surveys conducted by the Pew Research Center.

After the appeals court issues its ruling, the case could end up before the Supreme Court where Rozenshtein also predicts TikTok will not fare well.

“I don’t think TikTok is going to get any joy,” he said. “For TikTok and the users to win, they have to convince judges to ignore the considered judgments of Congress and the executive branch in the intelligence community about a platform whose risks are very real.”

“That is just a big ask,” Rozenshtein said.

TikTok declined to comment for this story.