A federal appeals court panel has issued a unanimous ruling that supports legislation that may lead to the prohibition of TikTok in the United States as early as next month. This decision represents a significant setback for the widely-used social media application, which is engaged in a battle to maintain its presence in the American market.
The U.S. Court of Appeals for the District of Columbia Circuit rejected TikTok’s request to overturn a law that mandates the company sever ties with its Chinese parent organization, ByteDance, before facing a potential ban by mid-January. The court dismissed TikTok’s argument asserting that the law infringes upon First Amendment rights. Judge Douglas Ginsburg, who authored the court’s opinion, emphasized that the government’s actions aimed to protect Americans from foreign threats. “The First Amendment exists to protect free speech in the United States,” the opinion stated.
TikTok and ByteDance are anticipated to take their appeal to the Supreme Court, although it is uncertain whether the high court will choose to hear the case. In a statement, TikTok spokesperson Michael Hughes expressed a firm belief in the Supreme Court’s historical commitment to safeguarding free speech. “We expect they will uphold this critical constitutional principle,” he added. Furthermore, Hughes criticized the grounds of the TikTok ban, which he believes stems from misleading and speculative information, contending that it threatens to silence the voices of millions of American users.
While the legal proceedings unfold, speculation arises regarding potential intervention from former President Trump, who initially sought to ban TikTok but expressed opposition to such measures during his recent presidential campaign. Rep. Michael Waltz, selected by Trump for national security adviser, indicated that Trump wishes to support TikTok.
The law in question, enacted by President Biden in April, emerged from a lengthy debate in Washington regarding the short-form video-sharing platform, perceived as a national security risk due to its Chinese connections. Authorities have voiced concerns regarding TikTok’s capacity to harvest extensive user information, including sensitive data that could potentially be accessed by the Chinese government through coercive means. Moreover, there are fears about the proprietary algorithm guiding content on the app, which critics argue could be manipulated by Chinese officials to influence users without detection. Similar apprehensions have been echoed by the European Union amid investigations into alleged Russian attempts to exploit the platform for interference in elections.
“This ruling marks a crucial stride in curbing the potential for the Chinese government to weaponize TikTok,” stated Attorney General Merrick Garland following the court’s decision. TikTok, which filed a lawsuit against the government in May, has consistently denied claims that it could be used for spying or manipulation by the Chinese government, noting that U.S. authorities have yet to provide proof of any data transfers or content manipulation favoring Beijing. TikTok’s legal team contends the law is based on speculative threats, referencing unspecified past actions that they describe as coerced by the Chinese government.
The recent ruling followed oral presentations to the three-judge appeals panel, comprised of two Republican appointees and one Democrat, during a hearing in September. The judges appeared to wrestle with constitutional questions surrounding TikTok’s foreign ownership and the government’s capacity to mitigate potential foreign influence on platforms that aren’t domestically owned. Ultimately, all three judges declined TikTok’s request to invalidate the law.
In the ruling, Judge Ginsburg dismissed TikTok’s central arguments against the law, stating that it does not constitute an unlawful bill of attainder nor violate the Fifth Amendment regarding property rights. He further indicated that the law does not contravene the First Amendment as it does not aim to censor content or demand a specific type of content mix on the app. “The content on the platform could potentially remain unchanged post-divestiture,” Ginsburg explained, emphasizing users’ freedom to engage with any content they choose.
Chief Judge Sri Srinivasan also provided a concurring opinion. TikTok’s legal challenge has been consolidated with another case brought forth by several content creators, alongside a third lawsuit initiated by conservative creators affiliated with a nonprofit organization. Various groups, including the Knight First Amendment Institute, have filed supporting briefs for TikTok.
“This is a poorly reasoned ruling that narrowly interprets significant First Amendment protections while granting the government extensive authority to limit Americans’ access to diverse ideas from around the world,” criticized Jameel Jaffer, the executive director of the Knight First Amendment Institute. “We hope this appellate ruling is not conclusive.”
Meanwhile, supporters of the legislation in Congress have expressed satisfaction with the court’s decision. Rep. John Moolenaar, a Republican from Michigan, expressed optimism regarding the possibility of an American acquisition of TikTok to ensure its continued operation in the country. Democratic Rep. Raja Krishnamoorthi, who co-authored the law, reinforced the necessity for ByteDance to comply with the legislation.
To mitigate worries regarding data security, TikTok has declared that it has invested over $2 billion on enhancing protections for U.S. user information. The company contends that the federal government’s overarching concerns could have been settled by a proposed agreement they put forth to the Biden administration two years ago. TikTok alleges that the government prematurely abandoned negotiations regarding this agreement, which the Justice Department has dismissed as inadequate.
Legal representatives for the companies assert that splitting the platform into separate entities is infeasible both commercially and technologically. They argue that selling TikTok without the valuable algorithm—which might be obstructed by Chinese authorities—would isolate the U.S. version of TikTok from the global network. Nonetheless, interest from potential investors persists, and individuals like Trump’s former Treasury Secretary Steven Mnuchin and billionaire Frank McCourt have voiced intentions to acquire the platform. McCourt’s Project Liberty has indicated that unnamed backers have tentatively committed over $20 billion in capital for this initiative.
