Last month, the DC Circuit Court of Appeals heard oral argument in TikTok Inc. v. Garland, which tests the constitutionality of a federal law that would ban the popular social media platform from app stores early next year unless its Chinese-affiliated parent company divests ownership. While seasoned lawyers caution against predicting decisions based on oral arguments alone, the proceeding did not go well for TikTok. The three-judge panel expressed skepticism about whether the First Amendment rights of the platform and its users should take precedence over Congress’s national security concerns, indicating that the case may be more contentious than initially anticipated.

I have previously discussed the First Amendment implications of a potential TikTok ban. Removing TikTok from US markets implicates not just the speech rights of TikTok US—an American subsidiary of China-based ByteDance—but also those of its 170 million American users, many of whom actively create content on the platform. To prevail, the government must demonstrate that the ban furthers an important governmental interest unrelated to free expression and that it does not substantially burden more speech than necessary to achieve that interest. The latter is particularly challenging, which is why courts enjoined earlier bans on TikTok and WeChat.

Perhaps to avoid the pitfalls of those earlier decisions, the government emphasized that Congress’s aim with this statute was not to ban TikTok outright but to eliminate Chinese influence over it. The Department of Justice provided two main justifications. First, TikTok collects user data that could potentially be exploited by China to recruit intelligence assets or enhance propaganda efforts. Second, ByteDance might manipulate TikTok’s recommendation algorithm from China to shape the content delivered to American users.

The parties debated these justifications at length. Concerns about data collection are both legitimate and appropriate: It is almost certain that some TikTok user data has intelligence value, and safeguarding that information is a legitimate governmental interest unrelated to free expression. Moreover, while the Supreme Court’s NetChoice decision affirmed that a social media platform’s content moderation decisions are generally protected speech, the government contends that this protection does not extend to content manipulation by a foreign company operating abroad. Justice Barrett hinted at this limitation in her NetChoice concurrence. This prompted a sharp exchange between the parties regarding who controls TikTok’s algorithm and where those decisions are made. Notably, much of the government’s evidence is under seal, inaccessible not only to the public but also to TikTok, complicating the platform’s ability to counter factual claims. However, one key admission from the government’s unsealed evidence stands out: it has no intelligence indicating that China currently manipulates TikTok’s algorithm.

The court also posed difficult questions to TikTok’s users. Unquestionably, the First Amendment protects their right to speak on the platform. But do they have standing to challenge the ownership of that platform? Last term’s Murthy decision held that users generally lack standing to sue based solely on a desire to hear content. Conversely, Lamont v. Postmaster General acknowledged a listener’s right to receive propaganda (from China, no less). Counsel for the users argued that by choosing accounts to follow, users resemble those in Lamont. Users also stressed a separate interest in speaking on the platform of their choice. The court seemed skeptical, citing a 1988 ruling that denied a First Amendment challenge to the government’s closure of the Palestine Information Organization due to its affiliation with a terrorist organization.

Surprisingly, the court focused little on the second prong: whether a ban would chill more speech than necessary. The parties argued about the appropriate standard, as the government has more leeway under intermediate scrutiny than strict scrutiny. I continue to believe that the government is correct that the more lenient standard applies; however, it’s not clear that standard is satisfied. A ban is both overinclusive and underinclusive: It suppresses more user speech than necessary while failing to prevent China from obtaining user data through other means. Much will hinge on the judges’ perspectives regarding potential alternative methods to limit data flows to China—an issue upon which the judges seemed tight-lipped.

All involved hope for a ruling by December 1. But this decision will not mark the end of the battle, as the losing party is likely to pursue en banc review or an appeal to the Supreme Court. The oral arguments highlighted the novelty of this legislation and complexities surrounding the issues at stake, making it more difficult to predict the ultimate outcome. As the geopolitical environment with China deteriorates, the court must carefully balance national security interests against our core commitment to freedom of expression. When striving to protect America, we must do no more harm than necessary to the values that distinguish us as Americans.