TikTok faces a skeptical jury in its existential battle against the US government

The future of TikTok – an app used by 170 million Americans – now rests in the hands of three judges. The company fought for its survival during oral arguments Monday, but the justices expressed deep skepticism about TikTok's case.

Lawyers for TikTok and a group of developers suing to block the law, popularly known as the “TikTok ban,” presented their case before a three-judge panel of the DC Circuit Court of Appeals. Although the bill calls for a divestment of the app from its Chinese owner ByteDance by Jan. 19, the company says the ultimatum is in fact a ban that would stifle free speech for TikTok and its developers and unduly limit the information Americans can obtain.

The Justice Department defended the law, arguing that it was taking appropriate, targeted action against a company that posed a national security risk because of its alleged contacts with a foreign adversary government. The justices — Obama-appointed Chief Justice Sri Srinivasan, Trump-appointed Justice Neomi Rao and Reagan-appointed Justice Douglas Ginsburg — seemed to direct more questions to TikTok's lawyer than to the Justice Department. During TikTok's arguments, both Rao and Ginsburg appeared to blink or put a hand to their head at times. Srinivasan preferred to play his cards close to his chest, asking questions of both sides and nodding at answers from both.

The DC Circuit is an appellate court that typically hears cases involving federal agencies. The fact that the bill is an act of Congress and not an agency action, did not go unnoticed by the judges. Rao told TikTok's legal counsel Andrew Pincus that Congress is “not the EPA” and does not have to make decisions like an agency – their decisions are validated by the fact that they were able to pass the law. Rao later said that many of Pincus' arguments sounded like he wanted the panel to treat Congress “like an agency.”

The judges questioned the practicality of requiring TikTok to take less stringent measures, such as disclosing information about the company's data and content moderation practices. This would require trusting the very company the government believes is a puppet of a covert foreign adversary, Rao and Srinivasan stressed.

Ginsburg, who did not speak until the end of TikTok's argument, rejected Pincus's claim that the law excludes the company. Instead, Ginsburg said, it describes a category of companies controlled by foreign adversaries that could be subject to the law, and specifically identifies a case where there is an immediate need following years of fruitless negotiations on the part of the government.

Jeffrey Fisher, arguing on behalf of a group of copyright plaintiffs, said that upholding the law could ultimately lead to further restrictions on the ability of Americans to produce for other foreign-owned media companies, Politico from Spotify to the BBC. Fisher said the government's justifications for manipulating content – including concerns raised by some MPs about TikTok's content recommendations on the Gaza war – “taint the entire bill”.

However, the judges also questioned whether the developers really have an interest in the question of who owns TikTok. Judge Amy Coney Barrett’s considerations in the recent NetChoice A case was also brought up that addressed how foreign ownership could change the First Amendment calculation. The justices noted that the law is not only about foreign ownership in general, but also about adversarial foreign states.

Still, the justices also urged Daniel Tenny of the Justice Department to ask whether U.S. company TikTok, Inc. had First Amendment rights. Tenny said it did, but in this case they were “incidental” because they were not the target of the law.

The government has sought to present certain classified documents to the court while simultaneously withholding them from TikTok, fearing that their disclosure would further jeopardize the national security risks the government is concerned about. Those documents were not discussed during the roughly two-hour oral argument. Instead, the lawyers and judges focused on exactly how the First Amendment should be applied to the case and how to evaluate the role of a foreign owner in TikTok.

Kiera Spann, a TikTok creator and plaintiff in the lawsuit, told reporters during a news conference after arguments that she considers the platform to be “the least censored and most authentic source of information,” and said she has not found the kind of conversations she has had on TikTok on other social media platforms. Jacob Huebert, president of the Liberty Justice Center, which represents separate plaintiff BASED Politics, said The edge Outside the courthouse, he was “not surprised” that the judges asked “challenging questions of both sides,” including questions of the Justice Department about how far the foreign ownership issue could go when it came to free speech. Huebert called it a “mistake” to read too much into the number and nature of the questions.

An estimated 150 people crowded into the courtroom on Monday to hear the judges who could decide TikTok's fate. Whatever the outcome, it can be appealed to the Supreme Court – but time is running out as the Jan. 19 divestment deadline draws ever closer.