TikTok’s standing in the United States faced turbulence as a federal appeals court dismissed a challenge to a law mandating the social media platform to sever its connections with its China-based parent company, ByteDance, or face a ban by mid-January.
A trio of judges from the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that the law passed constitutional tests, rejecting claims from TikTok and ByteDance that it infringed on their rights as well as those of TikTok users in the country.
The U.S. government has expressed its desire for ByteDance to divest its interests in TikTok. Should this not happen and the app were to be removed from operation, it could dramatically affect content creators who depend on the platform for income, along with users who utilize it for entertainment and social interaction.
Details from the ruling indicate that TikTok and ByteDance challenged the statute on several grounds. They argued that it violated the First Amendment and constituted an unconstitutional law aimed specifically at their operations. However, the court supported arguments from the Justice Department, which asserted that the law was a necessary measure to address national security threats without breaching constitutional rights.
The government has maintained that TikTok presents a national security concern due to its relationship with China. Officials claim that Chinese authorities could compel ByteDance to disclose information regarding American users or misuse the platform to manipulate information flow. However, there have been no public instances cited by the U.S. to prove these claims.
Judge Douglas Ginsburg authored the appeals court opinion, indicating that the law in question was meticulously designed to curb control exerted by foreign adversaries. The judges dismissed the argument that the law functioned as an unconstitutional bill of attainder or an unlawful seizure of property under the Fifth Amendment. Additionally, Ginsburg pointed out that the statute did not violate the First Amendment, clarifying that the government is not seeking to limit or mandate particular types of content on TikTok.
As the case moves forward, TikTok and ByteDance are likely to bring their legal battle to the Supreme Court, although the court’s willingness to hear the case remains uncertain. The platform signaled on Friday that the companies are preparing to take their arguments to a higher judicial authority, emphasizing that the Supreme Court has a longstanding history of upholding American free speech rights.
“We anticipate they will affirm this crucial constitutional matter,” a spokesperson for TikTok commented.
Alan Morrison, a law professor at The George Washington University, suggested that the unprecedented issues brought up in the suit could lead the Supreme Court to review the case. Should that occur, the companies would need to persuade the court to issue an emergency stay to prevent the government from enforcing the divestiture deadline set for January 19.
This could lead to an extended legal process as the Justices deliberate over the ruling.
Tiffany Cianci, a TikTok content creator who has advocated for the platform, expressed her lack of surprise regarding the court’s decision as lower courts often defer to executive authority in such matters. She remains optimistic that TikTok will present a stronger case before the Supreme Court, stating, “I believe future stages will likely yield a positive outcome for TikTok and its users.”
Amid this unfolding situation is President-elect Donald Trump, who previously sought to ban TikTok during his first term but has since stated he is against such measures. The transition team has not provided specific information on how Trump intends to “save TikTok,” although a spokesperson affirmed the commitment to fulfill campaign promises.
After Trump’s inauguration on January 20th, the enforcement of the law will rest with his Justice Department, which will implement penalties on app stores violating the TikTok prohibition and on internet hosting services that support the platform.
There are discussions suggesting that Trump might instruct his Justice Department to refrain from enforcing the law, although tech giants like Apple and Google, which provide the TikTok app in their marketplaces, would need assurances that they wouldn’t face repercussions for noncompliance.
Craig Singleton, a senior official of the China program at the Foundation for Defense of Democracies, mentioned that enforcement discretion or executive orders cannot supersede established law, suggesting Trump’s options for unilateral action are limited.
Nonetheless, he could invoke specific legal provisions concerning whether a sale or transaction would release TikTok from foreign control or he might push Congress to repeal the law, although that would require support from Republican lawmakers who largely favor curtailing Chinese company control of TikTok.
On Friday, Republican Rep. John Moolenaar of Michigan, a key figure on the House Select Committee on China, expressed optimism that President Trump would facilitate a U.S. acquisition of TikTok, allowing the platform to continue operating within the country.
However, ByteDance has maintained that it has no intention of selling TikTok, and even if it did, complications regarding the export of the key algorithm that powers the app could obstruct such a transaction, considering regulations enacted by China in 2020.
If ByteDance were to sell TikTok without this crucial component, it would likely result in the acquisition of only a fraction of the platform’s technological advantages. Nonetheless, there remains interest from investors, including Steven Mnuchin, a former Treasury Secretary, and billionaire Frank McCourt, who have expressed intentions to bid for the platform.
This week, a spokesperson for McCourt’s Project Liberty, which aims to safeguard online privacy, stated that potential participants in their offer have pledged informal commitments exceeding $20 billion. However, they refrained from disclosing specific identities associated with the bid.