CNN
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TikTok, the popular social media platform celebrated for its frothy mix of dance videos, cat antics, news clips and recipes, will wage a fierce battle over the First Amendment in the Supreme Court on Friday.

As the Biden administration, which is defending a ban on TikTok, emphasizes the national security risks of the app’s Chinese parent company, TikTok and its allies are trying to shift the focus to the speech rights of millions of Americans and the regular fare they watch on a regular basis.

TikTok is appealing a major lower court ruling that highlighted security threats, particularly U.S. government concerns that Beijing will collect data on American users and secretly manipulate TikTok content for espionage and other harmful purposes.

The members of the lower court panel, which included the district’s chief judge and a long-serving senior judge, represent both sides of the ideological spectrum and command great respect on the Supreme Court.

The company and the content creators challenging the looming ban have strategically strengthened their arguments about the dangers of suppressing speech, even if it is propaganda from a foreign adversary. TikTok also switched over its legal team for Friday’s arguments. She will be represented at the court’s lectern by Noel Francisco, a former U.S. attorney general during Donald Trump’s first term.

Their message: China’s potential for US exploitation is exaggerated. The content creators who also sued are turning their attention to the estimated 170 million Americans who use TikTok and the primary content they watch.

“Only a fraction of the content on TikTok could even serve to advance China’s geopolitical interests,” wrote attorney Jeffrey Fisher, who represents individual creators and will join Francisco at the lectern. “Most of it consists of things like dance videos, home repair tutorials, and weekend getaway montages.”

Making First Amendment protections even more important, Fisher wrote in a separate filing with the court last week: “It makes no difference that the government fears that a ‘foreign adversary’ may be involved in forcing offensive speech on Americans.” “

Reagan, Obama and Trump justices opposed TikTok

However, the unanimous Washington, DC-based US Court of Appeals was persuaded by the Biden administration’s arguments that Congress had sufficient national security concerns for China to control TikTok through its parent company, ByteDance, incorporated in the Cayman Islands. but has its headquarters in Beijing. The law forces TikTok to find a new owner or face a ban on January 19th.

In the opinion of Judge Douglas Ginsburg, a 1986 appointee of Ronald Reagan, the D.C. Circuit found that the government had “compelling” interests in China’s efforts to collect data on American users and the risk of covert manipulation of TikTok content. Ginsburg was joined by Justice Neomi Rao, a Trump appointee and former law clerk to Justice Clarence Thomas.

The panel’s third member, Barack Obama-appointee Chief Justice Sri Srinivasan, agreed that the law should be upheld but cautioned that the government does not have to meet the strictest First Amendment test to justify the law.

“Consistent with long-standing limitations on foreign control of mass communications channels,” Srinivasan wrote in a separate statement, “the activity central to the law’s disinvestment mandate is that of a foreign nation, not one domestic speaker – in fact not “just a foreign nation, but a designated foreign adversary.”

In total, the 92 pages of lower court briefs addressed issues that would appeal to the conservative-dominated Supreme Court.

Given TikTok’s widespread reach in America and the U.S. government’s ongoing efforts against the People’s Republic of China, there is a lot at stake in this appeal. Adding to the drama, President-elect Trump has filed a letter asking the justices to put the law on hold so he can negotiate a resolution after he takes office that addresses security concerns but saves the platform. The ban is set to take effect the day before Trump’s inauguration on January 20th.

In the Biden administration’s defense of the law, U.S. Attorney General Elizabeth Prelogar claimed in a filing last week: “No one disputes that the People’s Republic of China (PRC) seeks to undermine U.S. interests by collecting sensitive data about Americans and themselves engaged in covert and clandestine activities.” malicious influence operations. No one disputes that the PRC pursues these goals through ostensibly private companies under its control and by prepositioning assets in the United States to deploy them at the right moment.”

“And given these realities,” emphasizes Prelogar, who will represent the Biden administration on Friday, “no one can seriously deny that ByteDance’s PRC control of TikTok poses a serious threat to national security.”

The ban, passed by Congress and signed by Biden in April, grew out of years of bipartisan concern about the dangers of Beijing’s influence on Americans. For example, officials expressed fears that China could use large amounts of sensitive data collected by TikTok to blackmail individuals or conduct corporate espionage.

Under the law, TikTok would only be allowed to continue operating after January 19 if it sells ByteDance’s platform. If it doesn’t find a new owner, U.S. app stores and Internet hosting services would be banned from distributing and serving TikTok.

The D.C. Circuit emphasized the government’s tradition of focusing on the threats posed by the Chinese parent company: “The multi-year efforts of both political branches to examine the national security risks posed by the TikTok platform and to consider possible remedies proposed by TikTok outweigh.” .” strong for the law. … It was carefully crafted to address only control by a foreign adversary and was part of a broader effort to counter a well-founded national security threat posed by the PRC.”

The lower court repeatedly cited a 2010 Supreme Court decision, Holder v. Humanitarian Law Project, authored by Chief Justice John Roberts, which calls for deference to the government on issues of national security and foreign affairs.

Referring to the language in Roberts’ opinion, Ginsburg wrote: “The administration has presented convincing evidence that the law is narrowly tailored to protect national security.” “Given the sensitive national security and foreign policy interests,” the are at stake, “the government’s judgment based on this evidence carries significant weight.”

Srinivasan similarly relied on the rationale: “It is a practice of the PRC to secretly access data through its control of companies like ByteDance.” If users did not yet noticeably use it, Congress did not have to wait until the risk was identified and the damage was done before taking action to prevent it. ”

In TikTok’s appeal, Francisco argues that the government overstated China’s interest in TikTok’s data and understated TikTok’s ability to protect itself from interference from China. He says that while Congress can force the company to disclose its ties to foreign adversaries, it cannot completely prohibit the dissemination of foreign views, including hostile propaganda.

Francisco noted that even at the height of the Cold War, the First Amendment prevented the government from preventing American activists from spreading communist propaganda.

He emphasizes that TikTok exercises its right to freedom of expression through its American employees, who, as the company points out, “can at least decide whether to submit to any alleged ‘control’ by ByteDance.”

Fisher, speaking on behalf of the people who create content for the platform, separately adds that Congress could have decided to ban ByteDance from sharing data with China without violating speech rights.

And urging the justices in his written brief to consider the First Amendment’s looming consequences, Fisher said: “Rarely, if ever, has the Court addressed a free speech case that matters to so many people.” 170 million Americans regularly use TikTok to communicate, entertain themselves, and follow news and current events. … Shutting down TikTok will significantly restrict their expression.”