TikTok on Thursday rejected the U.S. government’s arguments that the popular social media platform is not protected by the First Amendment, comparing its platform to prominent American media organizations owned by foreign companies.
Last month, the Justice Department argued in a brief filed in a federal appeals court in Washington that neither TikTok’s China-based parent company ByteDance nor the platform’s global and U.S. arms – TikTok Ltd. and TikTok Inc. – are entitled to First Amendment protections because they are or are owned by “foreign organizations operating abroad.”
TikTok’s lawyers have made the First Amendment a central point in their legal challenge to the federal law that requires ByteDance to sell TikTok to an approved buyer or face a ban on sales.
On Thursday, they argued in a court filing that TikTok’s U.S. arm does not lose its constitutional rights because it is owned by a foreign company. They drew a parallel between TikTok and well-known news portals such as Politico and Business Insider, both owned by German publisher Axel Springer SE. They also cited Fortune, a business magazine owned by Thai businessman Chatchaval Jiaravanon.
“Surely the American companies that publish Politico, Fortune and Business Insider do not lose First Amendment protections simply because they are foreign-owned,” TikTok’s lawyers wrote, arguing that there is “no precedent” supporting the government’s “dramatic rewriting of what constitutes protected speech.”
In a redacted court document last month, the Justice Department argued that ByteDance and TikTok had not made valid free speech claims in their challenge to the law, saying the measure addressed national security concerns about TikTok’s ownership without targeting protected speech.
The Biden administration and TikTok have been in talks for the past few years to address the administration’s concerns, but the two sides have failed to reach an agreement.
TikTok said the government essentially walked away from the negotiating table after it proposed a 90-page agreement detailing how the company would address concerns about the app while maintaining ties with ByteDance.
However, the Justice Department said TikTok’s proposal “does not provide sufficient separation between the company’s U.S. operations and those in China” and does not adequately address some of the government’s concerns.
The government has pointed to some data transfers between TikTok employees and ByteDance engineers in China in justifying why it believed the proposal, called “Project Texas,” was insufficient to prevent national security concerns. Federal officials have also argued that TikTok’s size and scope would have made it impossible to meaningfully enforce compliance with the proposal.
Lawyers for TikTok said on Thursday that some of the points in the agreement that the government considered inadequate were never raised during negotiations.
Separately, the Justice Department on Thursday evening asked the court to produce evidence under seal, saying in a brief that the case contains information classified as “top secret.” TikTok resisted those requests.
Oral hearings in the case are scheduled to begin on September 16.
