January 3, 2025
You wanted an update to the TikTok ban which is still happening in just 16 days. Here it is.
Both TikTok and the Department of Justice filed their reply briefs to the Supreme Court this afternoon. I told you in these videos each side submitted their opening briefs last week. Those briefs were like TikTok and the government’s opening statements.
Well in today’s briefs – TikTok is responding to the government’s opening statements and the government is responding to TikTok’s opening statements. And as you can imagine – neither side is holding back.
Yes – I read both of these reply briefs and I’m just going to highlight a few key things that each side brought up. And stay till the end becuase you might not believe what the federal government admitted. Just wait for it.
First – TikTok’s brief really goes after the federal government’s main argument that not only does TikTok as a company not have any first amendment rights – but all of TikTok’s 170 million American users also do not have any first amendment rights in this case because according to the government, TikTok’s parent company Bytedance is based in China, a foreign adversary so therefore first amendment rights do not apply. In its reply brief TikTok said – not today. Not in America. That’s not how it works. “That argument has no basis in law or fact, and contradicts the government’s concession that TikTok inc. Is a bona fide American company. …the government proclaims this American company “has no first amendment right to be controlled by a foreign adversary” or to “serv[e] as a compelled mouthpiece for Bytedance’s speech.” Again, no citation follows that assertion. Both law and logic hold otherwise.”
Just for some technical clarification – yes TikTok is an American company. But TikTok’s parent company Bytedance is not an American company. It is a company based in China. The US government has deemed China a foreign adversary. No TikTok is not a Singaporean company. TikTok’s CEO is from Singapore but that has nothing to do with who owns TikTok.
Ok – back to TikTok’s arguments. In the reply brief TikTok says – just because Bytedance which is based in China, creates the code for the algorithm China is not responsible for deploying that code in the United States. TikTok says it’s up to TikTok US to determine how that code is applied here on US soil and distributed to TikTok users in the United States which TikTok says – further qualifies them and their users for first amendment protections. “Someone is curating and publishing the US platform; whether that is TikTok inc., Bytedance ltd., or both, they each have that first amendment right.”
At several points in the their 31-page reply brief – TikTok points out how the government just says stuff and makes claims but offers no proof of any real threat that TikTok is posing to the United States. For example the government claims that TikTok collects wide swaths of user data from Americans and feeds it to China and claims that because of that and many other reasons – TikTok is a grave national security risk. TikTok responds by saying, “in fact, the government fails to prove TikTok is a “severe” data-security risk at all. The government asserts that (i) China has great interest in Americans’ data, (ii) TikTok has great amounts of Americans’ data, and (iii) China has great control over TikTok and Bytedance. Again, however, it concedes the alleged risk has never materialized, while making no effort to explain why this dog has never barked. The explanation is that the government’s premises are wrong.”
But the US government is not backing down. They are actually doubling down that the TikTok ban is not a violation of the first amendment, and in fact, in some kind of jedi mind trickery, the government says banning TikTok would actually be upholding the first amendment. “The act neither seeks to suppress any American’s speech nor to prevent any American from receiving speech from abroad—including PRC propaganda. Instead, it simply seeks to prevent the PRC from controlling a platform that holds itself out as “today’s quintessential marketplace of ideas” (id. At 3) …By preventing a foreign adversary government from secretly manipulating a U.S. communications platform used by 170 million Americans, “the act actually vindicates the values that undergird the first amendment.”
Perhaps the most interesting argument the government makes in its reply brief is to TikTok’s argument that congress didn’t have to ban TikTok. TikTok argued that if congress really believed TikTok was a national security threat that the law actually says congress could have and should instead imposed a warning label on the content.
In perhaps the most shocking thing I’ve read, the government basically wrote in its reply brief – we tried to warn people and they didn’t care so we banned it. “[r]equiring TikTok to disclose the potential data-collection risks to users” is not a viable alternative. The government has publicly highlighted TikTok’s data-security risk for years, yet usage of the application—and corresponding data collection— has only continued to grow. …[TikTok] also ignore[s] that the United States has a compelling interest in preventing the PRC from exploiting TikTok’s user data even if individual users would choose to disregard that risk.”
I lastly want to point out that the US government tells the Supreme Court in their brief that the justices should disregard president elect Trump’s filing asking the court to put a pause on the ban so he can assess the security risk and decide what to do with the platform once he takes office. The government said that in order to do what trump wants, TikTok has to prove that they can win this case… “petitioners have not made that showing here—and the president-elect does not argue otherwise.”
We will have to wait and see what happens during oral arguments in front of the Supreme Court one week from today.
Read TikTok’s reply brief here.
Read the government’s reply brief here.
