TikTok remains determined to fight the U.S. Government’s attempt to force it into a sell-off, with the company filing its latest legal opposition to the bill late last week.

In its latest legal filing, TikTok, and parent company ByteDance, have labelled the bill “the most sweeping speech restriction in this country’s history.” Which seems extreme, but TikTok’s maintaining that the sell-off bill is tantamount to a ban, because the stated parameters and requirements would be impossible for TikTok to cater for before the bill is set to come into effect.

As per the legal filing:

“The government’s attempted rehabilitation of the Act is as precedent-shattering as the Act itself. It says the Court should ignore Congress’s failure to enact findings explaining why it imposed this unprecedented speech restriction - and instead offers post hoc justifications resting on speculation and demonstrably erroneous factual assertions. It relies on secret submissions that it seeks to exempt from adversarial testing and public view. It brushes aside Congress’s denial of the protections it afforded all other companies - depriving only Petitioners of a statutory basis to contest that they are “controlled by a foreign adversary” or pose a threat. The government’s core legal contention - that a monumental speech restriction is subject to mere rational-basis review - flouts decades of settled precedent.”

Essentially, TikTok’s argument is that the law is not based on demonstrable evidence, but only on the perception of a threat from a “foreign adversary”. There’s seemingly little to definitively indicate that TikTok and ByteDance are working in collusion with the Chinese Government, which could pose a security threat, and that’s what TikTok’s now looking to use to dismiss the bill, or force the Government to provide more evidence.

Which the government may have. The U.S. Justice Department recently claimed that TikTok has tracked U.S. users’ views on sensitive issues, and shared that information with its Chinese parent company ByteDance, which is required to pass on such info with the Chinese government on request.

The Justice Department claims that it has evidence to show that TikTok has used insights gleaned from U.S. users to target them with propaganda in the app, at the direction of the Chinese Government, while also censoring certain content as demanded by the CCP.

So if pressed, the Government may well have this kind of evidence at its disposal, though it hasn’t seemingly produced such as yet.

Which TikTok’s legal team is leaning on in its counterargument:

“The government’s defense of the Act fails as a matter of law, and the Act must be enjoined. But if the Court concludes it must consider the government’s factual claims and secret evidence, it should temporarily enjoin the Act and establish a fair process for meaningful judicial review. With the speech of 170 million Americans at stake, the Constitution demands nothing less.”

In this context, TikTok is seeking to dismiss the case, or temporarily delay it, by enjoining the proposal.

It’s hard to see that being an effective counter-push from TikTok, because the Government will invoke national security concerns to push the bill through, which will override a lot of these protests. That the push is coming from the government itself is key in this context, because it means that the highest levels of government have already reviewed and agreed to the implementation of such in law.

That could render a lot of TikTok’s protests ineffective, but then again, if a court does side with its view, it may see the bill delayed.

The current bill is set to go into effect early next year, though TikTok’s hoping to extend that deadline till at least 2026 with this challenge. The importance of that is that if Donald Trump wins the upcoming election, he could overturn the ban, which would be difficult to do within the current time limits.  

Trump has said that he’s opposed to banning TikTok, despite initially implementing a TikTok ban bill in 2020, when he was President. TikTok’s key hope now, seemingly, is that it might be able to delay the ban for long enough that a Trump White House could then abandon the bill, and allow it to remain in the U.S.

So, really, the object here could be as much about delay as dismissal of the plan.

We’ll see how the Justice Department responds to the latest move.