How a US court decision on Palestine might determine TikTok’s future

When TikTok was arguing for its survival in the US in front of a US appeals court, the topic of Palestine took centre stage as TikTok's lawyer and circuit court judges went back and forth about the future of the social media platform.

“What about the case involving the Palestine Information Office, are you familiar with that case?” asked DC Circuit Court Judge Neomi Rao, one of three judges hearing TikTok's argument against a law passed by US congress that could lead to a potential ban in the country.

“I don't think I am [familiar], unfortunately, I apologise your honour,” said TikTok's lawyer Andrew Pincus.

Judge Rao is referring to case from 1987 known as Palestine Information Office v Shultz.

“There, this court said the fact that the Palestine Information Office, which was an entity in the US, could be shut down by the State Department, in part because of it's affiliation as a foreign mission to the PLO, which is a designated terrorist organisation,” said Judge Rao.

“Our court seemed to suggest very strongly that the control or the relationship itself was part of the strong justification for what the government did,” she explained to Mr Pincus, who seemed to be on the defensive for much of the hearing.

“I'm not familiar with that case your honour, I'm happy to address it in a supplemental brief,” Mr Pincus told the judge, trying to pivot to his overall arguments against the legislation passed by US Congress that seeks to force Beijing-based ByteDance to sell TikTok.

It is not yet clear if TikTok's lawyer being unfamiliar with Palestine Information Office v Shultz will impact his overall argument, but one thing is for certain, given that it was one of the first topics brought up by one of the three appeals court judges, the case's precedent is definitely being tested to some extent.

Palestine Information Office versus Shultz origins

The case of PIO v Shultz stretches back to 1987, when then US Secretary of State George Shultz, and ultimately the US State Department, ordered the closure of the Palestine Information Office in Washington DC.

That decision stemmed from a US law passed in 1982 known as the Foreign Missions Act, which caused tighter regulation with regard to foreign missions inside the US.

More specifically, it sought to “protect the US public from abuses and privileges and immunities by members of foreign missions”, while also seeking to regulate “the activities of foreign missions in the US in a manner that protects the foreign policy and national security interests of the US”.

Since the US classified the Palestine Liberation Organisation as a terrorist group, it applied the Foreign Missions Act to the Palestine Information Office as well, claiming that the office operated in association with the PLO.

In response, the PIO sued Mr Schultz, alleging that the organisation's freedom of speech and association was being violated.

The US government, however, told the circuit court that closing the PIO was well within the State Department's responsibility to conduct foreign affairs.

In the end, the circuit court upheld the State Department's decision to close the PIO office.

“Having found that the Secretary's determination that the PIO is a 'foreign mission' representing the PLO was proper, the court concludes that the plaintiff's constitutional claims … do not rise to the level necessary to implicate First Amendment concerns,” the court wrote, dismissing the case and the idea that the PIO's free speech was being violated.

Thirty-seven years after the gavel slammed in on that particular case, it appears that decision may be weighing heavily on the outcome of TikTok's fight against US Attorney General Merrick Garland, and for that matter, the legislation that could potentially ban TikTok from operating in the US.

TikTok's argument

Back in April, US President Joe Biden signed HR 7521, also known as the 'protecting Americans from foreign adversary controlled applications act.'

That legislation singled out ByteDance, the Beijing-based parent company of TikTok, and essentially accused it of being under control of China, therefore making it a threat to US national security.

The bill requires that ByteDance divest from TikTok for the app to continue operating for millions of users in the US.

TikTok came out swinging against the legislation, urging users to call legislators and insist that the platform's free speech was being violated.

After passing both houses of US Congress and ultimately receiving a signature from Joe Biden, TikTok decided to sue the US government.

During his argument before the US appeals court, Mr Pincus disagreed with US government's claim that ByteDance was based out of China, and stated that it's technically a holding company registered in the Cayman Islands.

In response, Sri Srinivasan, one of three judges at the hearing, told Mr Pincus that company was ultimately “subject to Chinese control”, seeming to echoing the legislative concerns that data from the app could fall into the hands of Chinese government officials.

TikTok's lawyer, however, kept refocusing on his main arguments.

“This law imposes extraordinary speech prohibition based on indeterminate future risks,” he explained.

“For the first time in history, Congress has expressly targeted a specific US speaker, banning its speech and the speech of 170 million Americans.”

The battle over TikTok's future in America

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He also told the judges that mere foreign ownership of companies should not necessarily negate the exercise of free speech, listing several US media companies that he said were owned by foreign entities.

“We have lots of publications owned by foreign entities and to say your foreign ownership casts your First Amendment in doubt … would fundamentally change the first amendment,” he added.

“Mere foreign ownership can't possibly be a justification because it would throw the First Amendment on its head.”

It remains to be seen when the court will make its much-anticipated decision regarding the TikTok's future, but it is likely to do so before the January 19 divestment deadline codified in the legislation signed by US President Joe Biden.