U.S. House Majority Leader Steve Scalise (R-LA) and U.S. Reps. John Moolenaar (R-MI) and Cathy McMorris Rodgers (R-WA) joined a bipartisan contingent of more than 50 of their colleagues in urging a federal appeals court to reject arguments from TikTok Inc. and its China-based parent company, ByteDance Ltd., that their constitutional rights are being violated by the Protecting Americans from Foreign Adversary Controlled Applications Act.
Signed into law in April, the act specifically requires ByteDance, an internet company, to sell the TikTok short-form video hosting service by early next year to a “qualified buyer,” meaning a buyer without ties to the Chinese government. If not, then the company faces restrictions that are designed to end TikTok’s operations in the United States.
In May, TikTok, ByteDance, and TikTok users filed two separate appeals, asking the U.S. Court of Appeals for the District of Columbia Circuit to block the law’s enforcement.
The lawmakers on Aug. 2 filed an amicus brief in one of those appeals, TikTok, et al. v. Garland, defending the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act, also known as the Divestiture Act.
Specifically, the act prevents app store availability or web hosting services in the U.S. for ByteDance-controlled applications, including TikTok, unless the application severs ties to entities like ByteDance that are subject to the control of a foreign adversary, as defined by Congress in Title 10, according to the brief.
House Majority Leader Scalise; House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party Chairman Moolenaar and Ranking Member Raja Krishnamoorthi (D-IL); and House Energy and Commerce Committee Ranking Member McMorris Rodgers joined 53 other lawmakers in debunking that claim, saying TikTok’s legal challenges incorrectly claim the bill is unconstitutional and violates their First Amendment rights.
“The Divestiture Act does not regulate speech or require any social media company to stop operating in the United States,” according to their brief. “The Divestiture Act is instead focused entirely on the regulation of foreign adversary control and provides a clear path for affected companies to resolve the national security threats posed by their current ownership structures.”
The members say the act is backed by “extensive fact-finding about the national security threat to the American people” posed by certain foreign adversary-controlled applications.
“The Divestiture Act resembles and, indeed, is narrower than numerous other restrictions on foreign ownership that Congress has enacted in other statutory regimes,” the brief says. “And Congress did not transcend the limits imposed by the First Amendment and other constitutional restraints, because ‘it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.'”
The brief adds that the bill creates a process for the president to designate certain, specifically defined social media applications that are subject to the control of a foreign adversary — per Title 10 — and pose a national security risk.
“Designated applications will face a prohibition on app store availability and web hosting services in the U.S. unless they sever ties to entities subject to the control of a foreign adversary through divestment,” the brief says.
Oral arguments in the case are scheduled for Sept. 16.