'American speech' or 'Chinese engineers'? Lawyers battle in court over TikTok sale-or-ban law

Heavy-hitting lawyers went against the feds on behalf of TikTok and its content creators including a prominent libertarian journalist at the U.S. Court of Appeals for the D.C. Circuit on Monday, in a case that's either about "American speech" or "Chinese engineers" controlling what Americans can see, judging by each side's arguments.

The Liberty Justice Center, which is live-posting the oral argument on X, is representing BASED Politics, a nonprofit co-founded by Brad Polumbo, a former Washington Examiner opinion columnist, that uses social media to "promote ideas related to free markets and individual liberty to a Gen Z audience."

Arguing for TikTok and its Chinese owner ByteDance is Mayer Brown lawyer Andrew Pincus, and for content creators is Jeffrey Fisher of Stanford Law School, Reuters reported in a preview of the argument. Both are prominent Supreme Court litigators.

Pincus told the appeals court, a common source for SCOTUS nominees, that "mere foreign ownership cannot by itself restrict" the First Amendment "because it would change the outcome in dozens of cases," LJC paraphrased him in its X thread on the argument, which concerns the federal law that forces ByteDance to divest TikTok or face a U.S. ban.

The law would be unconstitutional even if judged by the middle tier of judicial scrutiny because "the record is filled with statements from members of Congress motivated by the specific content of speech on TikTok," LJC paraphrased Pincus.

When Judge Sri Srinivasan, passed over for SCOTUS by President Biden, brought up U.S. law limiting "foreign ownership of media organizations with broadcast licenses," TikTok's other lawyer, Jeffrey Fisher, said that justification isn't based on content and viewpoint, as with TikTok, LJC paraphrased.

"Once it’s American speech, speech inside the U.S., like here, the First Amendment applies," he said.

Justice Department lawyer Daniel Tenny countered that Congress is trying to protect data that is "highly valuable to foreign adversaries" and limit "foreign control over what U.S. users see," which at most targets the expression of "Chinese engineers" through the "creation and maintenance of the [TikTok] algorithm," LJC paraphrased.

The argument was still going as of 11:45 a.m. Eastern.