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“Only a fraction of the content on TikTok could even plausibly be put to the task of trying to advance China’s geopolitical interests,” wrote lawyer Jeffrey Fisher, who represents individual creators and will share time at the lectern with Francisco. “Most of it consists of things like dance videos, home-repair tutorials, and montages of weekend getaways.”

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

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“(I)n step with longstanding restrictions on foreign control of mass communications channels,” Srinivasan wrote in a separate opinion, “the activity centrally addressed by the Act’s divestment mandate is that of a foreign nation rather than a domestic speaker—indeed, not just a foreign nation but a designated foreign adversary.”

Overall, the92 pages of lower court writingsstruck themes that would appeal to the conservative-dominated Supreme Court.

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In the Biden administration’s defense of the law, US Solicitor General Elizabeth Prelogar asserted in a filing last week: “No one disputes that the People’s Republic of China (PRC) seeks to undermine US interests by amassing sensitive data about Americans and engaging in covert and malign influence operations. No one disputes that the PRC pursues those goals through ostensibly private companies subject to its control and by pre-positioning assets in the United States to deploy at opportune moments.”

“And in light of those realities,” insists Prelogar, who will represent the Biden administration Friday, “no one can seriously dispute that the PRC’s control of TikTok through ByteDance represents a grave threat to national security.”

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Under the law, TikTok would be allowed to continue operating after January 19 only if it divests the platform from ByteDance. If it fails to find a new owner, US app stores and internet hosting services would be banned from distributing and servicing TikTok.

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

Francisco observed that even at the height of the Cold War, the First Amendment prevented government from stopping American activists from distributing communist propaganda.

He stresses that TikTok exercises its free speech rights through its American employees, who, the company insists, “can choose, at minimum, whether to submit to any purported ‘control’” by ByteDance.

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

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