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2024 has been a big year for social media litigation. Social media companies have successfully leveraged the First Amendment and persuaded courts to vacate laws that seek to restrict their curation practices—even in the context of protecting kids.

But social media giant TikTok’s legal challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act might be poised to end that winning streak.

The law requires Chinese tech company ByteDance to divest its ownership interest in the social media app TikTok. If it doesn’t, then TikTok will face an all-out ban in the U.S.

TikTok argues that the law is facially invalid under the First Amendment. Specifically, TikTok argues that the law’s divestiture requirement is an unconstitutional content-based restriction on its speech because it unjustifiably singles out TikTok’s speech over that of any other platform because of the legislature’s disapproval of the content the company displays to its users.

However, TikTok may have just given up the ghost on its First Amendment claim at oral argument in the D.C. Circuit. The lawyer for TikTok US (a U.S. company) admitted in open court that TikTok US does not control the algorithm. Instead, ByteDance (a Chinese company) controls the algorithm. Furthermore, Chinese engineers get to change the algorithm, directly affecting what is shown in the U.S., without consulting with TikTok US; indeed, TikTok US doesn’t even get to review those changes before they are implemented. In other words, TikTok US isn’t curating content or speaking on the app—China-based ByteDance is.

That’s a huge problem for its First Amendment claim.

Justice Amy Coney Barrett’s concurring opinion in Moody v. Netchoice tells us why. Justice Barrett, citing the Supreme Court’s decision in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., explained that, although it is true that “[c]orporations . . . possess First Amendment rights themselves[,] . . . foreign persons and corporations located abroad do not.” At TikTok’s oral argument, Judge Sri Srinivasan reinforced that “when it’s a foreign organization, they don’t have a First Amendment right to object to a regulation of their curation.” Judge Srinivasan went even further, saying that the TikTok law may be  distinguished from the laws at issue in NetChoice because TikTok can “curate to its heart’s content, but what it can’t do is do that while it’s owned by China.”

Strangely, TikTok’s lawyer didn’t even try to walk its admission back. Instead, TikTok reiterated that “it was not owned by China” and that the government’s case relied on perceived Chinese “control” over the app. Even on that point, Judge Neomi Rao appeared unpersuaded. She pointed to the 1988 D.C. Circuit case Palestinian Information Office v. Schultz that upheld the U.S. government’s closure of the Palestinian Information Office against First Amendment challenge. As Judge Rao explained, in that case, the “Palestine Information Office, which was an entity in the United States, could be shut down by the State Department in part because of its affiliation, as a foreign mission, of the PLO, which is a designated terrorist organization.” Mere affiliation was enough; control was not required. TikTok’s lawyer retorted that he was “unfamiliar with that case.”

TikTok also argues that the challenged law is “unprecedented.” Judge Douglas Ginsburg doesn’t seem to think so. He asked during oral argument “why this is any different, from a constitutional point of view, than the statute precluding foreign ownership of a broadcasting license?”

When TikTok argued that Congress had no authority to enact the law, Judge Rao complained that “many of [TikTok’s] arguments want us to treat [Congress] like they’re an agency.” She characterized TikTok’s view of congressional authority as “a very strange framework for thinking about our first branch of government.”

The TikTok content creators who are also parties to this case didn’t fare much better in oral argument. They argued that they have an interest was in associating with the Chinese-controlled ByteDance. Judge Rao again pointed to the D.C. Circuit’s holding in Schultz to dismiss the notion that the First Amendment protects such consumer preferences.

If it’s true that TikTok undermined its own First Amendment argument, the case may turn on whether the government can establish that TikTok is a national security threat. Unfortunately for TikTok’s case, the record appears to be very well established on that front.

Here are some highlights of the government’s case: The House of Representative’s report establishes a direct link between ByteDance and TikTok. It states that “the Secretary of ByteDance Ltd.’s CCP committee, Zhang Fuping, also serves as ByteDance Ltd.’s Editor-in-Chief and Vice President and has vowed that the CCP committee would “take the lead'' across “all product lines and business lines,'' including TikTok.” And in a separate case, under penalty of perjury, a former head of engineering at ByteDance in the United States, Yintao “Roger” Yu, explained that the CCP accessed TikTok’s app stores’ data via ByteDance’s so-called “god credential” to obtain “users’ direct messages, their search histories, the content viewed by the users, and duration.”

Given these facts and the way oral argument went, it would not be a surprise if ByteDance has started preparing its divestiture papers.