More details are emerging about TikTok‘s impending court date. The US Court of Appeals for the District of Columbia has set a September date for oral arguments in two cases that will determine whether the federal divest-or-ban law violates the U.S. Constitution.
The September date applies to the case between TikTok and the Justice Department as well as a second lawsuit that pits an octet of creators against the U.S. Both groups of plaintiffs are looking to show that the Protecting Americans From Foreign Adversaries Act (PAFFAA) represents an unwarranted intrusion on First Amendment rights.
“The Act thus promises to shutter a discrete medium of communication that has become part of American life, prohibiting Petitioners from creating and disseminating expressive material with their chosen editor and publisher—and from receiving such material from others,” reads the complaint filed by the suing creators. “This extraordinary restraint on speech violates the First Amendment.”
TikTok is expected to invoke the First Amendment in its own oral arguments, but its case will also include another key focal point: Project Texas. That’s the name TikTok gave to a security plan that would have placed the app’s U.S. operations under the oversight of a Stateside team.
Though TikTok championed Project Texas publicly, the plan stalled in the Committee on Foreign Investment in the United States (CFIUS). In court, TikTok hopes to learn why CFIUS gave Project Texas the cold shoulder.
The Justice Department will likely attempt to counter TikTok’s claims about Project Texas by casting the plan as a nonstarter. When TikTok CEO Shou Zi Chew appeared before Congress last year, regulators made clear that they weren’t convinced by the proposed plan.
“My concern is that I don’t believe it is technically possible to accomplish what TikTok says it will accomplish through Project Texas,” Congressman Jay Obernolte (R-CA) said at the time.
In a statement provided to The Washington Post, a Biden Administration official clarified that the White House “determined more than a year ago that the solution proposed by the parties at the time would be insufficient to address the serious national security risks presented. While we have consistently engaged with the company about our concerns and potential solutions, it became clear that divestment from its foreign ownership was and remains necessary.”
That’s an interesting argument to make, since Project Texas offered the U.S. government extraordinary oversight across multiple facets of TikTok’s business. Perhaps, with TikTok’s numerous security-related question marks in mind, there was no solution other than PAFFAA that would have satisfied the U.S. government.
According to a court filing, the plaintiffs in the two upcoming cases must submit their briefs by June 20. The Justice Department must complete the same step by July 26.
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