TikTok wants US courts to believe it is a foreign-owned media organisation

TikTok is currently embroiled in a significant legal battle in the United States, centring on whether the popular social media platform, owned by the Chinese company ByteDance, is entitled to First Amendment protections.

On Thursday, TikTok pushed back against the US government’s claims that the platform is not shielded by these constitutional rights, arguing that its status as a foreign-owned entity should not strip it of free speech protections.

National security vs free speech
The conflict began last month when the US Department of Justice (DOJ) filed a legal brief arguing that TikTok, along with its parent company ByteDance and its US operations, does not qualify for First Amendment protection.

The DOJ’s position is rooted in national security concerns, asserting that TikTok’s ownership by a foreign entity, particularly one based in China, disqualifies it from the same constitutional protections that are typically afforded to US-based companies.

The government contends that the federal law requiring ByteDance to sell TikTok to an approved buyer or face a potential ban is not an infringement on free speech but rather a necessary step to protect national security.

Is TikTok a media company?
In response, TikTok’s legal team has made the First Amendment a central pillar of their defence. On Thursday, they filed a court document arguing that TikTok’s US arm does not lose its constitutional rights simply because it is owned by a foreign entity.

To strengthen their argument, TikTok drew comparisons between itself and several prominent American media organisations that are also foreign-owned but still enjoy First Amendment protections. These include Politico, Business Insider, and Fortune, all of which are owned by foreign companies but operate freely under US law.

TikTok’s attorneys argued that there is “no precedent” for the government’s stance that foreign ownership disqualifies a company from free speech protections. They claimed that the government’s interpretation represents a “dramatic rewriting” of what counts as protected speech, one that could have far-reaching implications for any foreign-owned media operating in the United States.

Failed negotiations
The legal battle is the latest chapter in a long-standing dispute between TikTok and the US government. Over the past few years, the Biden administration has expressed concerns about TikTok’s ownership and its potential to compromise US national security, particularly regarding data transfers between TikTok and ByteDance engineers in China.

To address these concerns, TikTok proposed a detailed 90-page agreement, known as Project Texas, outlining how it would separate its US operations from its parent company in China while still maintaining ties with ByteDance.

However, the government ultimately rejected TikTok’s proposal, arguing that it failed to create sufficient separation between the company’s US operations and China. The DOJ pointed to data transfers and other security concerns as reasons why the proposal was inadequate.

Federal officials also expressed doubts about whether the sheer size and scope of TikTok’s operations would allow for meaningful enforcement of any agreement, further complicating efforts to resolve.

TikTok’s legal team has countered that some of the government’s criticisms of the proposal were never raised during negotiations, suggesting that the government may not have fully engaged in the process before walking away from the table.

Court battles
The legal dispute is set to escalate as oral arguments are scheduled to begin on September 16. In a separate but related development, the DOJ requested that the court submit evidence under seal, citing the presence of information classified at “Top Secret” levels.

TikTok has opposed these requests, arguing for transparency in the proceedings. As the case unfolds, it raises significant questions about the balance between national security and free speech, particularly in the context of foreign-owned media operating in the US

The outcome could have broader implications not just for TikTok but for any foreign company seeking to do business in the United States under similar circumstances.