TikTok’s survival is at stake in all-out fight against US ban

(Bloomberg) — Chinese social media platform TikTok is fighting a potential U.S. ban with the signature tools of American democracy: lawyers, lobbyists and money.

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TikTok has hired Washington power brokers and $1,500-an-hour lawyers to defend itself against a new law banning the app unless its Beijing-based parent company, ByteDance Ltd., spins off. With a $4.8 million advertising campaign, a press conference on the Capitol and the US Constitution, TikTok is in a multi-front fight for its survival.

“They are out in full force,” said Joel Thayer, a Republican lawyer who helped promote the legislation, arguing that the company’s data collection and ties to the Chinese government make it a threat to national security. “It’s the end of life for them. It’s a very well orchestrated piece.”

TikTok’s fate depends in part on US courts after it sued to overturn the law signed by President Joe Biden, forcing ByteDance to sell the app by January 19 or be barred from operating in the US. The government’s response is expected on Friday, ahead of oral arguments in September, and the company is prepared to take its case to the Supreme Court.

With over 170 million monthly users in the US, TikTok has a lot at stake. A ban would exclude ByteDance from the world’s most profitable advertising market and give an immediate boost to rivals such as Meta Platforms Inc.’s Reels or YouTube’s Shorts.

In court filings, TikTok called the law “fundamentally at odds with the Constitution’s commitment to freedom of expression and individual liberty.” He also insisted that China’s government cannot access US user data and said Congress has not substantiated its claims of a threat to national security.

“We remain convinced that the law is on our side and that the courts will overturn this unconstitutional ban,” said Alex Haurek, a TikTok spokesperson.

Outside of Washington, the video-sharing platform is fighting a parallel battle for public opinion.

Since 2023, TikTok has spent more than $4.8 million on ads promoting stories about how the app has improved users’ lives, according to ad analytics firm AdImpact. It is also helping to fund a lawsuit against the US brought by content creators who were approached by Davis Wright Tremaine, a law firm that defends major technology companies including Meta and Amazon.com Inc.

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Eight TikTok creators — including a Texas farmer, a college football coach and a Maryland book lover who promotes Black authors — appeared as plaintiffs, arguing that a ban would trample their First Amendment rights.

“I definitely couldn’t afford it,” said Paul Tran, one of the plaintiffs and co-founder of a skin-care line. “They are helping us combat this.”

Supreme Court experts

TikTok laid the groundwork for its defense long before the divestment or ban law was passed in April. In 2020, then-President Donald Trump signed an executive order banning the app for national security reasons, but it was rescinded by the Biden administration amid a series of legal challenges.

In 2020, TikTok was represented by a handful of lawyers from the law firm Covington & Burling, and the platform has since added lawyers from the Chicago-based law firm Mayer Brown.

In anticipation of a Supreme Court review, TikTok hired Mayer Brown’s Andrew Pincus, a former assistant U.S. attorney who argued 30 cases before judges and represented other big tech companies including Google and Alphabet’s Spotify Technology SA. Inc.

The creators are also getting help from Supreme Court heavyweights, including O’Melveny’s Jeffrey Fisher, who has argued four dozen cases on the nation’s highest court, and Joshua Revesz, who once clerked for Justice Elena Kagan.

“The creators have distinct and important First Amendment rights in this case, and we are proud to challenge the government’s unconstitutional ban on their behalf,” said Ambika Kumar, an attorney at Davis Wright Tremaine, who is the lead attorney for the creators.

Lawyers with Supreme Court experience typically charge hundreds to thousands of dollars per hour. In 2020, Fisher charged $1,555 an hour to fight an anti-abortion law in Louisiana that the Supreme Court struck down, according to court records.

These hires could give TikTok an edge at the Supreme Court, according to Adam Feldman, creator of the Empirical SCOTUS blog. Pincus and Fisher know the justices and know how to structure their arguments, Feldman said.

“There is the ability for the interaction to be much more conversational than adversarial,” Feldman said.

Bloomberg Intelligence analysts now give TikTok a 60% chance of winning in court, up from 30% when the lawsuit was first filed. That could change if the Justice Department presents evidence of a threat to national security that U.S. intelligence officials presented to Congress in closed-door sessions.

Lobbying blitz

TikTok shelled out millions in the months before the law was signed, and its lobbyists continued to cover the Capitol as the court case unfolded. ByteDance spent nearly $6 million on lobbying during the first half of 2024, up from $3.5 million during the first half of 2023.

TikTok said part of last quarter’s spending increase was due to employee stock buyouts, which counted as pay raises. But the company also expanded its presence with new hires and strong messaging against the potential ban.

TikTok’s list of 47 outside lobbyists includes several former lawmakers, including New York Democrat Joe Crowley, who was defeated by Alexandria Ocasio-Cortez after nearly 20 years in office; California Republican Jeff Denham; and Illinois Republican Rodney Davis.

A congressional aide familiar with the TikTok lobby said Davis, Crowley, Denham and former Republican Senate Majority Leader Trent Lott were instrumental, thanks to their long-term relationships in Congress.

TikTok has also built a team of 15 in-house lobbyists, including Alex Harman, who previously focused on regulating big tech companies, and Elizabeth Oblinger, a former eBay Inc. lobbyist and staffer for former Ohio Republican Sen. Rob Portman .

Company representatives criticized lawmakers for passing an unconstitutional bill and argued that banning TikTok will only benefit Meta, said two congressional officials who requested anonymity to disclose private conversations. Several TikTok lobbyists have expressed confidence that the law will be overturned, framing it as a legislative failure by Congress.

“With the Republicans, they are really trying to present themselves as an alternative to Instagram and Meta,” Thayer said.

That argument echoes Trump’s own about-face on TikTok — and his criticism of Meta CEO Mark Zuckerberg over Facebook’s decision to kick Trump off the platform following the deadly Jan. 6, 2021, riot at the U.S. Capitol.

In a recent interview with Bloomberg Businessweek, the Republican presidential candidate reversed his previous support for the ban, saying “I’m for TikTok because you need competition. If you don’t have TikTok, you have Facebook and Instagram – and that, you know, is Zuckerberg.”

TikTok responded by saying that Meta had orchestrated an anti-TikTok campaign, citing previous reporting by The Washington Post. Meta declined to comment.

As part of its campaign in Washington, TikTok also assembled a group of hard-nosed communications employees, led by former Walt Disney Co. executive Zenia Mucha. Several spokespeople for TikTok and ByteDance previously worked at big tech companies, such as Meta and Amazon veteran Jodi Seth.

Five star stay

TikTok also enlisted the help of its content creators, who filmed commercials and visited the nation’s capital this spring to plead its case. In August, the company also plans to send some of them to the National Conference of State Legislatures in Kentucky to tell their stories.

“We are proud that many members of our creator community took time from their personal lives, their families, and their small businesses to explain how TikTok’s unconstitutional ban would affect them,” said Haurek.

Trevor Boffone, a professor from Texas, said he participated in an ad filmed in Washington before the House voted on an earlier version of the bill in March. It starts with a farmer holding a sign at the US Capitol that says “TikTok changed my life for the better.” This farmer, also known as “Cara do Gado”, is one of the main plaintiffs in the case.

Boffone was among more than 50 content creators, spouses and TikTok employees who met with lawmakers and employees, according to him and several other attendees. The company financed the trip, hiring Los Angeles-based Innovate Marketing Group to help with the logistics, which included a stay at the five-star Salamander Hotel and two dinners at Michelin-rated chef Johnny Spero’s Bar Spero and the Jose Andres’ Bazaar, in the Waldorf. Astoria.

Amanda Ma, CEO of Innovate Marketing Group, declined to comment. TikTok encouraged creators to submit media requests through the company’s public relations team and prohibited them from keeping or sharing an information packet that was distributed at the start of the meeting.

Ultimately, the creators’ efforts were insufficient. At the end of the visit, the bill passed the House by a vote of 352 to 65, and divestment or ban language was included a month later in the mandatory foreign aid legislation that Biden signed in late April.

TikTok’s efforts have been criticized by some lawmakers.

“Big tech companies, including TikTok, and their army of powerful lawyers and lobbyists continue to put profits before people – fighting meaningful reforms that protect users for their own benefit,” said Senator Richard Blumenthal, a Democrat of Connecticut in a statement. “It’s time we protect consumers, competition and privacy and end the influence of special interests for good,” he said.

Boffone and other creators pushed back against criticism that TikTok was using them for its own benefit.

“I love TikTok,” he said. “It’s an important part of my life. It’s an important part of my livelihood.”

–With assistance from Jamie Tarabay and Kurt Wagner.

(Updates with comment from Senator Blumenthal in third paragraph of last paragraph.)

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