TikTok faces a skeptical panel of judges in its existential fight against the US government

TikTok — an app used to by 170 million Americans — now has its future resting in the hands of three judges. The company fought for its life during oral arguments on Monday only for the judges to express a great deal of skepticism towards TikTok’s case.

Attorneys for TikTok and a group of creators suing to block the law popularly known as “the TikTok ban” made their case before a panel of three judges on the DC Circuit Court of Appeals. Though the bill seeks a divestment of the app from its Chinese owner ByteDance by a January 19th deadline, the company says the ultimatum is in truth a ban that would stifle the speech of TikTok and its creators, and improperly limit the information Americans are able to receive.

The Department of Justice defended the law, saying that it takes appropriate, targeted action against a company that poses a national security risk because of its alleged exposure to a foreign adversary government. The judges — Obama appointee and Chief Judge Sri Srinivasan, Trump appointee Judge Neomi Rao, and Reagan appointee Judge Douglas Ginsburg — seemed to lob more questions toward counsel for TikTok than the DOJ. During TikTok’s arguments, both Rao and Ginsburg seemed at times to squint or rest a hand on the side of their head. Srinivasan played his cards closest to the chest, directing questions to both sides and nodding along to answers from both.

The DC Circuit is an appeals court that tends to deal with cases involving federal agencies. The fact that the bill is an act of Congress, rather an agency action, was not lost on the judges. Rao told TikTok’s counsel Andrew Pincus that Congress is “not the EPA” and doesn’t have to enact findings like an agency — their findings are borne out by the fact they were able to pass the law. Later, Rao said that many of Pincus’ arguments sounded like he wants the panel to treat Congress “like an agency.”

The judges questioned the practicality of requiring a lesser means of action from TikTok, such as disclosures from the company about their data and content moderation practices. That would depend on trusting the very company the government is worried is a pawn of a covert foreign adversary, Rao and Srinivasan pointed out.

Ginsburg, who didn’t pipe up until toward the end of TikTok’s argument, pushed back on Pincus’ assertion that the law singles out the company. Instead, Ginsburg said, it describes a category of companies controlled by foreign adversaries that could be subject to the law, and specifically names one where there’s an immediate need based on years of government negotiations that have failed to go anywhere.

Jeffrey Fisher, who argued on a behalf of a group of creator plaintiffs, said that upholding the law could ultimately lead to other limits on Americans’ ability to produce for other media companies with foreign owners, from Politico to Spotify to the BBC. Fisher said the content manipulation justifications the government gave — including some lawmakers’ fears about TikTok’s content recommendations around the war in Gaza — “taints the entire act.”

But the judges also questioned whether creators really have a First Amendment interest in who owns TikTok. Justice Amy Coney Barrett’s musings in the recent NetChoice case about how foreign ownership could change the First Amendment calculus also came up, and the judges noted the law is about foreign adversary nations, not just foreign ownership broadly.

Still, the judges also pushed DOJ’s Daniel Tenny on whether the US entity TikTok, Inc. has First Amendment rights. Tenny said it does, but they’re “incidental” in this case because they’re not the target of the law.

The government has sought to show the court certain classified documents while at the same time withholding them from TikTok, because it fears exposing them would further harm the very national security risks the government is worried about. These documents did not come up during the roughly two hours of oral arguments. Instead, the attorneys and judges focused on what level of First Amendment scrutiny should be applied to the case, and how to assess the role of a foreign owner over TikTok.

Kiera Spann, a TikTok creator and petitioner in the suit, told reporters during a press conference after the arguments that she found the platform to be “the least-censored and most authentic source of information,” and said she’s not found the kinds of conversations she’s had on TikTok on other social media platforms. Jacob Huebert, president of Liberty Justice Center which represents separate petitioner BASED Politics, told The Verge outside the courthouse he was “not surprised” the judges had “challenging questions for both sides,” including ones for the DOJ about how far the foreign ownership question could go when it comes to speech. Huebert called it a “mistake” to read too much into the number and type of questions.

An estimated 150 people packed the courtroom Monday to hear from the judges who could decide TikTok’s fate. Whatever the outcome, it can be appealed to the Supreme Court — but the clock is still running out with the January 19th deadline for divestment fast approaching.