TikTok will start making its case on Monday against a law that will see it banned in the US unless Chinese owner ByteDance sells the social media app within nine months.
The measure, signed into law by President Biden in April, addresses concerns that US users’ data could be exploited by the Chinese government.
TikTok and ByteDance have consistently denied any connections to Chinese authorities and have criticized the law as an “extraordinary intrusion on free speech rights.”
The company, which claims over 170 million US users, will argue its case before a three-judge panel at an appeals court in Washington DC.
TikTok representatives will be accompanied by eight creators, including a Texas rancher and a Tennessee baker, who depend on the platform for marketing their products and earning a living.
Following TikTok’s arguments, lawyers from the Department of Justice (DoJ) will present their case.
In addition to concerns about data security, DoJ officials and lawmakers are worried that TikTok could be used by the Chinese government to spread propaganda to Americans.
However, proponents of the US’s strong free speech protections, enshrined in the First Amendment, argue that enforcing the divest-or-ban law would set a dangerous precedent and benefit authoritarian regimes globally.
“We shouldn’t be surprised if repressive governments the world over cite this precedent to justify new restrictions on their own citizens’ right to access information, ideas, and media from abroad,” said Xiangnong Wang, a staff attorney at Columbia University’s Knight First Amendment Institute.
It has filed an amicus brief – legal documents submitted by someone not a party to the case but with an interest in it, offering information or expertise, usually with the hope of influencing the outcome.
Mr Wang also criticised lawmakers for being vague about the specific national security threats that they say TikTok poses.
“We can’t think of any previous instance in which such a broad restriction on First Amendment rights was found to be constitutional on the basis of evidence that wasn’t disclosed,” he said.
But according to James Lewis, of the Center for Strategic and International Studies in Washington, the law was drafted to withstand judicial scrutiny.
“The substance of the case against TikTok is very strong,” Mr Lewis said.
“The key point is whether the court accepts that requiring divestiture does not regulate speech.”
Mr Lewis added that the courts usually defer to the president on national security matters.
Regardless of how the appeals court rules, most experts agree the case could drag on for months, if not longer.
“Nothing gets resolved next week,” said Mike Proulx, vice president and research director at analysis firm Forrester.
“This is a high stakes and very complicated conundrum that will likely go all the way to the Supreme Court.”