Three federal lawmakers are urging the Supreme Court to strike down a law that will ban TikTok unless it separates from China-based parent company ByteDance, while two other lawmakers argue the statute should be upheld.
“History has shown that government censorship typically poses a much greater risk to Americans than the speech being censored,” Senators Ed Markey (D-Massachusetts) and Rand Paul (R-Kentucky) and Representative Ro Khanna (D-California) say in a friend-of-the-court brief arguing that the Protecting Americans From Foreign Adversary Controlled Applications Act violates the First Amendment.
Representatives John Moolenar (R-Michigan) and Raja Krishnamoorthi (D-Illinois), leaders of the Select Committee on the Chinese Communist Party, take the opposite position. They say in a separate friend-of-the-court brief that the law “is backed by extensive legislative factfinding demonstrating that foreign adversary nations seek to exploit applications including social media to target, surveil, and conduct other covert activities (including transnational repression) against the American people.”
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The law, passed earlier this year, will prohibit app stores and websites from distributing TikTok unless it's sold by ByteDance by January 19. The statute provides that the U.S. president can extend that deadline by three months, but President Joe Biden, who will still be in office on that date, hasn't yet indicated whether he will do so.
When Congress passed the measure, lawmakers expressed concerns that the Chinese government may be able to access data about TikTok's 170 million users, and use the app to sway public opinion.
TikTok and a group of content creators previously asked the D.C. Circuit Court of Appeals to invalidate the law, arguing that the statute violates the free speech rights of TikTok as well as its users.
The appellate court sided against TikTok, ruling on December 6 that the law's curbs on speech are justified by national security concerns. The appellate judges said in their opinion that Congress was worried about the risk of the Chinese “covertly manipulating content on the platform.”
TikTok and users are now appealing that ruling to the Supreme Court.
The lawmakers backing the appeal argue that the statute discriminates based on viewpoint, which has been held to violate the First Amendment's prohibition on censorship.
“In truth, what the D.C. Circuit called preventing content manipulation is pretext for viewpoint discrimination,” they argue.
Digital rights groups including the American Civil Liberties Union, Electronic Frontier Foundation, Freedom of Press Foundation and Public Knowledge make a similar argument in a separate friend-of-the-court brief.
“The record is clear that the government’s concerns about 'covert manipulation' are at bottom concerns about propaganda--i.e., about Americans’ access to the perceived content and viewpoints presented on TikTok,” those groups write.
Markey, Paul and Khanna add that the goal of protecting data “could not sustain the ban on its own and also overlooks that Congress did not consider whether less drastic mitigation measures could address those concerns.”
The law's defenders counter that the measure “reflects specific intelligence Congress considered about the impact of foreign adversary control on ByteDance and its applications,” as well as “longstanding congressional concern about the potential national security risks posed by foreign control of American companies.”
The Supreme Court will hear arguments on January 10 -- nine days before the law is scheduled to take effect.