The fight over whether TikTok remains legal in the U.S. could be heading to the Supreme Court.
On Friday, the U.S Court of Appeals for the D.C. Circuit upheld a federal law that will ban TikTok in the country over national security concerns — unless Chinese parent company ByteDance sells its interest in the app by Jan. 19, 2025. In the ruling, the three-judge panel found that national security risks outweighed the argument put forth by TikTok and ByteDance that the law violates the First Amendment rights of millions of the video app’s users.
“While the court today decides that the Act’s divestment mandate survives a First Amendment challenge, that is not without regard for the significant interests at stake on all sides,” the D.C. Circuit wrote in the decision. “Some 170 million Americans use TikTok to create and view all sorts of free expression and engage with one another and the world. And yet, in part precisely because of the platform’s expansive reach, Congress and multiple Presidents determined that divesting it from the [People’s Republic of China’s] control is essential to protect our national security.”
In a statement on the decision, TikTok spokesperson Michael Hughes said Friday: “The Supreme Court has an established historical record of protecting Americans’ right to free speech, and we expect they will do just that on this important constitutional issue. Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people. The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”
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In their lawsuit seeking to overturn the law, TikTok and ByteDance argued the the law is “obviously unconstitutional.” “Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership,” the lawsuit said.
The D.C. Circuit ruled that the law, called the Protecting Americans from Foreign Adversary Controlled Applications Act, does “not target speech based upon its communicative content. The TikTok-specific provisions instead straightforwardly require only that TikTok divest its platform as a precondition to operating in the United States.” Per the decision, the court found that the U.S. government “has offered persuasive evidence demonstrating that the Act is narrowly tailored to protect national security.”
The law specifies that, in the absence of a “qualified divestiture” by ByteDance, the TikTok ban will go into effect 270 days (nine months) after its enactment, which would be Jan. 19, 2025. In addition, the law gives the U.S. president the ability to grant a one-time extension of “not more than 90 days” if the president determines that ByteDance has a legitimate sales negotiation in progress to sell its TikTok stake. That would make the sell-or-ban date April 19, 2025.
President Biden signed the TikTok divest-or-ban bill into law on April 24, after it passed in Congress with solid bipartisan support. The legislation requires ByteDance to sell its stake in TikTok to a party or parties not based in a country the U.S. designates a “foreign adversary” and if it doesn’t, the distribution of TikTok would be outlawed.
Donald Trump, during his first term as president, was unsuccessful in his efforts to force ByteDance to sell majority control in TikTok to U.S. owners. But he has since changed his tune: In March, Trump posted on Truth Social, “If you get rid of TikTok, Facebook and Zuckerschmuck will double their business,” calling Facebook “a true Enemy of the People!” In a CNBC interview, Trump agreed that TikTok’s Chinese ties represent “a national security risk” but reiterated his point that a U.S. ban on the app would only help Facebook.
About 50% of Americans support a TikTok ban, while 32% oppose it and 18% are not sure, according to an Ipsos/Reuters survey earlier this year. Just 31% of those 18-34 say they are in favor of a ban, and 50% say they oppose it. Most Americans 35-54 (54%) and 55 and older (60%) say they support a ban of the app.
Prior to the law’s enactment, Sen. Maria Cantwell (D-Wash.), chair of the Senate’s Commerce, Science and Transportation Committee, suggested TikTok and ByteDance are “weaponizing” data and AI to spy on Americans, including journalists covering the company.
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In 2022, ByteDance said it fired four employees for “misconduct” after the company found they accessed TikTok data on several users, including two reporters.
Per the Ipsos/Reuters poll, 90% of U.S. adults believe content creators would migrate to alternative platforms if TikTok were banned. In addition, 45% said they worry a TikTok ban would negatively impact small businesses or performing artists, and 46% agree that a ban would infringe free-speech rights.