TikTok on Thursday pushed back against the U.S. government’s argument that the popular social media platform is not protected by the First Amendment, comparing the platform to prominent U.S. media organizations that are owned by foreign entities.
Last month, the Ministry of Justice argued in a legal argument TikTok, Inc. argued 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. — were entitled to First Amendment protection because they are “foreign organizations operating abroad” or owned by a foreign organization.
Lawyers for TikTok have made the First Amendment a key part of their legal challenge to the federal law that requires ByteDance to sell TikTok to an approved buyer or get a ban.
On Thursday, they argued in a court document that TikTok’s U.S. unit does not forfeit its constitutional rights because it is owned by a foreign entity. They drew a parallel between TikTok and well-known news outlets such as Politico and Business Insider, both of which are owned by German publisher Axel Springer SE. They also cited Fortune, a business magazine run by Thai businessman Chatchaval Jiaravanon.
“Surely the American companies that publish Politico, Fortune and Business Insider do not lose their First Amendment protections because they have foreign ownership,” TikTok’s lawyers wrote, arguing that “no precedent” supports what they called “the government’s dramatic rewriting of what counts as protected speech.”
In a redacted court document filed last month, the Justice Department argued that ByteDance and TikTok failed to raise valid free speech claims in their challenge to the law, arguing that the measure focuses on national security concerns related to TikTok’s ownership without addressing protected speech.
The Biden administration and TikTok had held talks in recent years to address the government’s concerns, but the two sides were unable to reach a deal.
TikTok said the government actually walked away from the negotiating table after it proposed a 90-page agreement detailing how the company planned to address concerns about the app while maintaining ties with ByteDance.
However, the Justice Department said TikTok’s proposal “failed to create sufficient separation between the company’s U.S. operations and those in China” and did 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 as reasons it believed the proposal, dubbed Project Texas, was insufficient to protect against 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 Thursday that some of the shortcomings of the agreement that the government sees were never discussed during negotiations.
Separately, the DOJ asked the court Thursday night to submit evidence under seal, a filing saying the case contains information classified at the “Top Secret” level. TikTok is opposing those requests.
Oral arguments in the case are expected to begin on September 16.
