TikTok Draws Parallels with Foreign-Owned Media in Effort to Avoid Sale or Ban

On Thursday, TikTok challenged U.S. government claims that the First Amendment does not protect the platform, comparing it to major American media outlets owned by foreign entities. Last month, the Justice Department argued in a legal brief submitted to a Washington federal appeals court that TikTok's China-based parent company, ByteDance, as well as its in worldwide and U.S. branches, TikTok Ltd. and TikTok Inc., should not receive First Amendment protections because they are either foreign entities or owned by one.

TikTok’s legal team has highlighted the First Amendment in their challenge against the federal law authorizing ByteDance to sell TikTok or fan a ban. On Thursday, they asserted in court that TikTok’s U.S. operations retain constitutional rights despite being owned by a foreign entity. They compared TikTok to major news organizations like Politico and Business Insider, which are owned by Thai Businessman Chatchaval Jiaravanon. The attorneys argued that American companies like Politico, Fortune, and Business Insider do not lose First Amendment protections due to foreign ownership, and they argued that the government’s approach constitutes an important and unsupported shift in the explanation of protected speech.   

In a redacted court filing from last month, the Justice Department argued that ByteDance and TikTok have not presented valid free speech claims in their challenge against the law, asserting that the measure addresses national security issues related to TikTok's ownership without targeting protected speech. Despite discussions between the Biden administration and TikTok aimed at addressing the government’s concerns, the two parties were unable to reach a resolution. TikTok claimed that the government effectively abandoned negotiations after it proposed a 90-page agreement outlining how the company would address app-related concerns while retaining connections with ByteDance. 

On Thursday evening, the DOJ requested that the court file evidence under seal, citing that the case involves information classified as Top Secret. TikTok has been opposing these requests. Oral arguments are set to start on September 16.