TikTok on Thursday pushed back against U.S. government arguments that the popular social media platform is not shielded by the First Amendment, comparing its platform to prominent American media organizations owned by foreign entities.
Last month, the Justice Department filed in a Washington federal appeals court that neither TikTok's China-based parent company, ByteDance, nor the platform's global and U.S. arms 鈥 TikTok Ltd. and TikTok Inc. 鈥 were entitled to First Amendment protections because they are 鈥渇oreign organizations operating abroad鈥 or owned by one.
TikTok attorneys have made the First Amendment a key part of their legal challenge to the federal law requiring ByteDance to sell TikTok to an approved buyer .
On Thursday, in a court document that TikTok鈥檚 U.S. arm doesn鈥檛 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 owned by Thai businessman Chatchaval Jiaravanon.
鈥淪urely the American companies that publish Politico, Fortune, and Business Insider do not lose First Amendment protection because they have foreign ownership,鈥 the TikTok attorneys wrote, arguing that 鈥渘o precedent鈥 supports what they called 鈥渢he government鈥檚 dramatic rewriting of what counts as protected speech.鈥
In a redacted court filing made last month, the Justice Department argued ByteDance and TikTok haven鈥檛 raised valid free speech claims in their challenge against the law, saying the measure addresses national security concerns about TikTok鈥檚 ownership without targeting protected speech.
The Biden administration and TikTok had held talks in recent years aimed at resolving the government's concerns. But the two sides failed to reach a deal.
TikTok said the government from the negotiating table after it proposed a 90-page agreement that detailed how the company planned to address concerns about the app while still maintaining ties with ByteDance.
However, the Justice Department has said TikTok鈥檚 proposal 鈥渇ailed to create sufficient separation between the company鈥檚 U.S. operations and China鈥 and did not adequately address some of the government鈥檚 concerns.
The government has pointed to some data transfers between TikTok employees and ByteDance engineers in China as why it believed the proposal, called Project Texas, was not sufficient to guard against national security concerns. Federal officials have also argued that the size and scope of TikTok would have made it impossible to meaningfully enforce compliance with the proposal.
TikTok attorneys said Thursday that some of what the government views as inadequacies of the agreement were never raised during the negotiations.
Separately the DOJ on Thursday evening asked the court to submit evidence under seal, saying in a filing that the case contained information classified at 鈥淭op Secret鈥 levels. TikTok has been opposing those requests.
Oral arguments in the case are scheduled to begin on Sept. 16.
