A law that could ban TikTok in the US doesn\u2019t violate the Constitution, a panel of judges unanimously \u2014\u00a0and forcefully \u2014 ruled on Friday. The decision suggests TikTok, which has evaded attempts at a ban or sale for over four years, really could be forced out of the US, unless its Chinese parent company, ByteDance, sells it off by January 19th. TikTok has indicated it will take its fight to the Supreme Court, and President-elect Donald Trump has previously promised to save the app, though he\u2019s been fuzzy on how. But as the deadline approaches, it faces an uphill legal battle.<\/p>\n<\/div>\n
Gautam Hans, a Cornell Law School professor and associate director of the school\u2019s First Amendment Clinic, thinks it\u2019s unlikely the Supreme Court will upend the DC Circuit\u2019s opinion. \u201cWhy would the Supreme Court take this case if they are already pretty deferential to national security in general? There\u2019s no mixed dissent, this was a bipartisan, congressional action,\u201d he says.<\/p>\n<\/div>\n
Plus, Hans says, the majority opinion is written to \u201cinsulate itself from reversal\u201d by assuming a lot in TikTok\u2019s favor and still deciding against it. For example, the court says that its opinion is entirely based on the public record \u2014 not the classified evidence that convinced many lawmakers to pass the bill and which TikTok objected to.<\/p>\n<\/div>\n
Despite the broad government consensus, some online speech advocates say the ruling sets a risky precedent, particularly if it leads to a TikTok ban instead of a sale. \u201cThe government cannot shut down an entire communications platform unless it poses extremely serious and imminent harm,\u201d said American Civil Liberties Union spokesperson Patrick Toomey. \u201cAnd there\u2019s no evidence of that here.\u201d<\/p>\n<\/div>\n
Here\u2019s why the court thinks it\u2019s legal to (potentially) kick one of the internet\u2019s biggest social networks out of the US.<\/p>\n<\/div>\n
Speech versus security<\/h3>\n<\/p>\n\nTikTok made several claims against the government, saying it unlawfully singled out the company and violated its First and Fifth Amendment rights. The court dismissed these concerns, but it spent the most time on the First Amendment challenge \u2014 concluding that any harm to TikTok and its users was outweighed by national security concerns.<\/p>\n<\/div>\n
\nTikTok argues that, for a social platform like its app, a ban would amount to suppressing speech for it and its US-based users. But the government argues that a Chinese parent company puts those users at risk. It makes two basic claims: that the Chinese government could access Americans\u2019 data; and that it could make TikTok covertly manipulate its recommendation algorithm, shaping what Americans see.<\/p>\n<\/div>\n
\nThe court agreed with TikTok that this is a First Amendment issue \u2014 rejecting government claims that, among other things, TikTok\u2019s foreign ownership should strip it of speech protections. The majority also agreed to consider strict scrutiny, which sets the highest bar for deciding whether the government has a pressing need and a well-tailored solution if it\u2019s going to potentially limit speech.<\/p>\n<\/div>\n
\nThese were about the only First Amendment wins TikTok chalked up. For one thing, the court didn\u2019t determine strict scrutiny was necessarily required. A majority opinion, written by Judge Douglas Ginsburg, says that\u2019s a difficult question \u2014 but the court didn\u2019t need to answer it because TikTok\u2019s claims would fail no matter what. (Chief Judge Sri Srinivasan wrote his own concurring opinion that conclusively set a lower bar of intermediate scrutiny.)\u00a0<\/p>\n<\/div>\n
\n\n\u201cThe Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents.\u201d<\/p>\n<\/div>\n<\/div>\n
\nFor another, the court proved reluctant to overrule Congress and other officials who raised concerns about TikTok. \u201cThe Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents,\u201d the majority writes. \u201cIt was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well substantiated national security threat posed by the PRC.\u201d Under those circumstances, the law could \u201cwithstand the most searching review.\u201d<\/p>\n<\/div>\n
\nElectronic Frontier Foundation civil liberties director David Greene, who wrote an amicus brief<\/a> in support of TikTok, said applying strict scrutiny was the right call. But he criticized the overall analysis as \u201crelying heavily on speculation about possible future harms.\u201d (For now, there\u2019s little public evidence that the Chinese government engaged in data access or platform manipulation at any significant scale; given its close ties to Chinese companies, however, it\u2019s extraordinarily difficult to rule that possibility out.)<\/p>\n<\/div>\n\nTikTok also argued that lawmakers had ulterior motives for the ban, noting that some discussed content they found objectionable on TikTok<\/a>\u00a0like what they perceived<\/a> as a high level of pro-Palestinian content<\/a>. But the judges did not find that to be a disqualifying factor.<\/p>\n<\/div>\n\nNor did it accept that the divest-or-ban rule amounted to censoring TikTok\u2019s speech or that of its users. \u201cContent on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much [People\u2019s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing,\u201d reads the ruling. \u201cWhat the Act targets is the PRC\u2019s ability to manipulate that content covertly.\u201d<\/p>\n<\/div>\n
\nIn fact, the ruling argued that a TikTok divest-or-ban rule outright promotes<\/em> the values of the First Amendment. \u201cIndeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States,\u201d the court writes. \u201cHere the Congress, as the Executive proposed, acted to end the [People\u2019s Republic of China\u2019s] ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.\u201d<\/p>\n<\/div>\n\u201cFortress America\u201d<\/h3>\n<\/p>\n\nKatie Fallow, deputy litigation director at Columbia University\u2019s Knight First Amendment Institute, says that<\/a> \u201csounds good in theory but is problematic in practice. Most likely the principle would be used to censor US people with unpopular views that might align with those of foreign states.\u201d<\/p>\n<\/div>\n\nThe court\u2019s framing is \u201cOrwellian,\u201d according to Techdirt founder Mike Masnick<\/a>. \u201cIt claims that banning TikTok, and the speech of millions of Americans on the platform, somehow enhances free speech. This is a complete inversion of First Amendment values. The First Amendment protects against government censorship and control of private speech, it doesn\u2019t justify such censorship in the name of preventing foreign influence. The court is essentially arguing that violating the First Amendment is necessary to save it, which is absurd.\u201d\u00a0<\/p>\n<\/div>\n\nUniversity of Chicago Law School professor Genevieve Lakier worries the ruling will \u201cturn the First Amendment into Fortress America.\u201d Foreign government manipulation is \u201cworrying,\u201d she writes on Bluesky<\/a>, but so is domestic government intervention in speech. \u201cThe goal of free speech law should be to navigate a pathway [between] these two great dangers.\u201d<\/p>\n<\/div>\n\nYanni Chen, policy counsel at the nonprofit Free Press, said in a statement that the group is \u201cdisappointed to see this court undermine Americans\u2019 First Amendment right to information and access in favor of the government\u2019s overbroad interests in national security.\u201d Chen says the law is \u201con par with practices by repressive regimes that the United States has historically criticized for their disregard of democratic principles.\u201d So far, however, the court strenuously disagrees.<\/p>\n<\/div>\n
Singling out TikTok<\/h3>\n<\/p>\n\nOn top of its First Amendment claims, TikTok has said the law amounts to a bill of attainder, illegally targeting and punishing it specifically. The court definitively dismissed the claim. It found the law satisfies nonpunitive aims and notes that Congress created a framework for potentially applying the divest-or-ban rule to other apps. TikTok\u2019s complaint about lawmakers having questionable motives, meanwhile, \u201chardly merits discussion.\u201d<\/p>\n<\/div>\n
\nGeorge Washington University Law School professor Mary Anne Franks, who sits on a content moderation advisory panel for TikTok<\/a> that doesn\u2019t play a role in this case, says the court\u2019s dismissive approach to this motivational test is concerning. \u201cThe bill of attainder provision is really important because it keeps Congress from coming after any one of us in a really single-minded, scapegoating kind of way,\u201d she says. \u201cIt\u2019s really meant to call attention to any attempt by Congress to single out a certain party and say, did you do this because you just don\u2019t like this party?\u201d<\/p>\n<\/div>\n\nCritics of the bill have also repeatedly pointed out<\/a> that foreign adversaries can easily buy American data from poorly regulated data brokers. But here, the court notes that Congress recently passed a bill banning data brokers from selling Americans\u2019 sensitive information<\/a> to the same set of foreign adversary countries. While the opinion says the TikTok bill\u2019s survival doesn\u2019t depend on the data broker law existing, it \u201csupports our conclusion that the Act reflects a good-faith effort on the part of the Government to address its national security concerns.\u201d<\/p>\n<\/div>\nFifth Amendment arguments<\/h3>\n<\/p>\n\nTikTok\u2019s backup constitutional challenge was the Fifth Amendment \u2014 specifically, its guarantee of equal protection under the law and its proscription of seizing private property without compensation. But it also failed. The judges say TikTok\u2019s equal protection claims amount to a complaint that only it was specifically named in the statute, a move the court determined was reasonable because it furthers a governmental interest. \u201cBy naming TikTok in the Act, the Congress ensured TikTok-related risks were addressed promptly.\u201d The opinion also notes that TikTok had protracted discussions with Congress and other parts of the government, saying that, in some ways, it actually \u201creceived more process\u201d than a company that wasn\u2019t singled out.<\/p>\n<\/div>\n
\nThe court also agrees with the government that the bill isn\u2019t illegally taking private property from the company, since ByteDance has the chance to make money off of a valuable asset. TikTok views divestiture as impractical, but that\u2019s mainly because the Chinese government has forbidden a sale \u2014 which the court says isn\u2019t really their concern. \u201cTikTok would have us turn the Takings Clause into a means by which a foreign adversary nation may render unconstitutional legislation designed to counter the national security threats presented by that very nation,\u201d the court concluded.<\/p>\n<\/div>\n
Siloing data isn\u2019t enough<\/h3>\n<\/p>\n\nBefore the current law passed, TikTok spent years attempting to silo its data in a way that would satisfy national security concerns, signing a deal with Oracle as part of a plan called Project Texas. But the court repeatedly slapped down the idea that these kinds of mitigation measures might be a solution. \u201cThe problem for TikTok is that the Government exercised its considered judgment and concluded that mitigation efforts short of divestiture were insufficient,\u201d it says. Since the government says it can\u2019t be confident it has enough visibility into the company to truly monitor it and can\u2019t trust in the company\u2019s compliance, \u201cthe court can neither fault nor second guess the Government on these crucial points.\u201d<\/p>\n<\/div>\n
\nThe judges say that TikTok\u2019s mitigation plan itself would raise a host of new issues. \u201cEntangling the U.S. government in the daily operations of a major communications platform would raise its own set of First Amendment questions. Indeed, it could be characterized as placing U.S. government \u2018officials astride the flow of [communications],\u2019\u201d they write. \u201cDivestiture poses no such difficulty.\u201d<\/p>\n<\/div>\n
\nOn one hand, this view emphasizes just how much the court is relying on Congress and the executive branch\u2019s national security assessments. The opinion says that, even if the judges agreed with TikTok on every factual dispute, it would be \u201cwholly inappropriate\u201d to accept its proposed alternatives to a sale \u201cafter Executive Branch officials \u2018conducted dozens of meetings,\u2019 considered \u2018scores of drafts of proposed mitigation terms,\u2019 and engaged with TikTok as well as Oracle for more than two years\u201d in an attempt to address security concerns.<\/p>\n<\/div>\n
\nOn the other hand, it puts Trump\u2019s promise to save the app in an even more strained position. Trump has marketed himself as tough on China, and the entire underpinning of the TikTok bill and the court\u2019s justification for upholding it rests on the government\u2019s own assessment of its national security risk. He\u2019s been short on specifics of what he\u2019d do to spare the app,\u00a0telling\u00a0NBC News<\/em><\/a>\u00a0<\/em>he will \u201cmake it so that other companies don\u2019t become an even bigger monopoly.\u201d\u00a0<\/strong>Saving TikTok could mean instructing the DOJ to not enforce the law, assuming SCOTUS doesn\u2019t strike it down. Or it could mean finding a buyer for the app \u2014 but that would require China\u2019s government to actually allow selling it<\/a>.<\/p>\n<\/div>\n<\/div>\n
TikTok made several claims against the government, saying it unlawfully singled out the company and violated its First and Fifth Amendment rights. The court dismissed these concerns, but it spent the most time on the First Amendment challenge \u2014 concluding that any harm to TikTok and its users was outweighed by national security concerns.<\/p>\n<\/div>\n
TikTok argues that, for a social platform like its app, a ban would amount to suppressing speech for it and its US-based users. But the government argues that a Chinese parent company puts those users at risk. It makes two basic claims: that the Chinese government could access Americans\u2019 data; and that it could make TikTok covertly manipulate its recommendation algorithm, shaping what Americans see.<\/p>\n<\/div>\n
The court agreed with TikTok that this is a First Amendment issue \u2014 rejecting government claims that, among other things, TikTok\u2019s foreign ownership should strip it of speech protections. The majority also agreed to consider strict scrutiny, which sets the highest bar for deciding whether the government has a pressing need and a well-tailored solution if it\u2019s going to potentially limit speech.<\/p>\n<\/div>\n
These were about the only First Amendment wins TikTok chalked up. For one thing, the court didn\u2019t determine strict scrutiny was necessarily required. A majority opinion, written by Judge Douglas Ginsburg, says that\u2019s a difficult question \u2014 but the court didn\u2019t need to answer it because TikTok\u2019s claims would fail no matter what. (Chief Judge Sri Srinivasan wrote his own concurring opinion that conclusively set a lower bar of intermediate scrutiny.)\u00a0<\/p>\n<\/div>\n
\u201cThe Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents.\u201d<\/p>\n<\/div>\n<\/div>\n
For another, the court proved reluctant to overrule Congress and other officials who raised concerns about TikTok. \u201cThe Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents,\u201d the majority writes. \u201cIt was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well substantiated national security threat posed by the PRC.\u201d Under those circumstances, the law could \u201cwithstand the most searching review.\u201d<\/p>\n<\/div>\n
Electronic Frontier Foundation civil liberties director David Greene, who wrote an amicus brief<\/a> in support of TikTok, said applying strict scrutiny was the right call. But he criticized the overall analysis as \u201crelying heavily on speculation about possible future harms.\u201d (For now, there\u2019s little public evidence that the Chinese government engaged in data access or platform manipulation at any significant scale; given its close ties to Chinese companies, however, it\u2019s extraordinarily difficult to rule that possibility out.)<\/p>\n<\/div>\n TikTok also argued that lawmakers had ulterior motives for the ban, noting that some discussed content they found objectionable on TikTok<\/a>\u00a0like what they perceived<\/a> as a high level of pro-Palestinian content<\/a>. But the judges did not find that to be a disqualifying factor.<\/p>\n<\/div>\n Nor did it accept that the divest-or-ban rule amounted to censoring TikTok\u2019s speech or that of its users. \u201cContent on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much [People\u2019s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing,\u201d reads the ruling. \u201cWhat the Act targets is the PRC\u2019s ability to manipulate that content covertly.\u201d<\/p>\n<\/div>\n In fact, the ruling argued that a TikTok divest-or-ban rule outright promotes<\/em> the values of the First Amendment. \u201cIndeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States,\u201d the court writes. \u201cHere the Congress, as the Executive proposed, acted to end the [People\u2019s Republic of China\u2019s] ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.\u201d<\/p>\n<\/div>\n Katie Fallow, deputy litigation director at Columbia University\u2019s Knight First Amendment Institute, says that<\/a> \u201csounds good in theory but is problematic in practice. Most likely the principle would be used to censor US people with unpopular views that might align with those of foreign states.\u201d<\/p>\n<\/div>\n The court\u2019s framing is \u201cOrwellian,\u201d according to Techdirt founder Mike Masnick<\/a>. \u201cIt claims that banning TikTok, and the speech of millions of Americans on the platform, somehow enhances free speech. This is a complete inversion of First Amendment values. The First Amendment protects against government censorship and control of private speech, it doesn\u2019t justify such censorship in the name of preventing foreign influence. The court is essentially arguing that violating the First Amendment is necessary to save it, which is absurd.\u201d\u00a0<\/p>\n<\/div>\n University of Chicago Law School professor Genevieve Lakier worries the ruling will \u201cturn the First Amendment into Fortress America.\u201d Foreign government manipulation is \u201cworrying,\u201d she writes on Bluesky<\/a>, but so is domestic government intervention in speech. \u201cThe goal of free speech law should be to navigate a pathway [between] these two great dangers.\u201d<\/p>\n<\/div>\n Yanni Chen, policy counsel at the nonprofit Free Press, said in a statement that the group is \u201cdisappointed to see this court undermine Americans\u2019 First Amendment right to information and access in favor of the government\u2019s overbroad interests in national security.\u201d Chen says the law is \u201con par with practices by repressive regimes that the United States has historically criticized for their disregard of democratic principles.\u201d So far, however, the court strenuously disagrees.<\/p>\n<\/div>\n On top of its First Amendment claims, TikTok has said the law amounts to a bill of attainder, illegally targeting and punishing it specifically. The court definitively dismissed the claim. It found the law satisfies nonpunitive aims and notes that Congress created a framework for potentially applying the divest-or-ban rule to other apps. TikTok\u2019s complaint about lawmakers having questionable motives, meanwhile, \u201chardly merits discussion.\u201d<\/p>\n<\/div>\n George Washington University Law School professor Mary Anne Franks, who sits on a content moderation advisory panel for TikTok<\/a> that doesn\u2019t play a role in this case, says the court\u2019s dismissive approach to this motivational test is concerning. \u201cThe bill of attainder provision is really important because it keeps Congress from coming after any one of us in a really single-minded, scapegoating kind of way,\u201d she says. \u201cIt\u2019s really meant to call attention to any attempt by Congress to single out a certain party and say, did you do this because you just don\u2019t like this party?\u201d<\/p>\n<\/div>\n Critics of the bill have also repeatedly pointed out<\/a> that foreign adversaries can easily buy American data from poorly regulated data brokers. But here, the court notes that Congress recently passed a bill banning data brokers from selling Americans\u2019 sensitive information<\/a> to the same set of foreign adversary countries. While the opinion says the TikTok bill\u2019s survival doesn\u2019t depend on the data broker law existing, it \u201csupports our conclusion that the Act reflects a good-faith effort on the part of the Government to address its national security concerns.\u201d<\/p>\n<\/div>\n TikTok\u2019s backup constitutional challenge was the Fifth Amendment \u2014 specifically, its guarantee of equal protection under the law and its proscription of seizing private property without compensation. But it also failed. The judges say TikTok\u2019s equal protection claims amount to a complaint that only it was specifically named in the statute, a move the court determined was reasonable because it furthers a governmental interest. \u201cBy naming TikTok in the Act, the Congress ensured TikTok-related risks were addressed promptly.\u201d The opinion also notes that TikTok had protracted discussions with Congress and other parts of the government, saying that, in some ways, it actually \u201creceived more process\u201d than a company that wasn\u2019t singled out.<\/p>\n<\/div>\n The court also agrees with the government that the bill isn\u2019t illegally taking private property from the company, since ByteDance has the chance to make money off of a valuable asset. TikTok views divestiture as impractical, but that\u2019s mainly because the Chinese government has forbidden a sale \u2014 which the court says isn\u2019t really their concern. \u201cTikTok would have us turn the Takings Clause into a means by which a foreign adversary nation may render unconstitutional legislation designed to counter the national security threats presented by that very nation,\u201d the court concluded.<\/p>\n<\/div>\n Before the current law passed, TikTok spent years attempting to silo its data in a way that would satisfy national security concerns, signing a deal with Oracle as part of a plan called Project Texas. But the court repeatedly slapped down the idea that these kinds of mitigation measures might be a solution. \u201cThe problem for TikTok is that the Government exercised its considered judgment and concluded that mitigation efforts short of divestiture were insufficient,\u201d it says. Since the government says it can\u2019t be confident it has enough visibility into the company to truly monitor it and can\u2019t trust in the company\u2019s compliance, \u201cthe court can neither fault nor second guess the Government on these crucial points.\u201d<\/p>\n<\/div>\n The judges say that TikTok\u2019s mitigation plan itself would raise a host of new issues. \u201cEntangling the U.S. government in the daily operations of a major communications platform would raise its own set of First Amendment questions. Indeed, it could be characterized as placing U.S. government \u2018officials astride the flow of [communications],\u2019\u201d they write. \u201cDivestiture poses no such difficulty.\u201d<\/p>\n<\/div>\n On one hand, this view emphasizes just how much the court is relying on Congress and the executive branch\u2019s national security assessments. The opinion says that, even if the judges agreed with TikTok on every factual dispute, it would be \u201cwholly inappropriate\u201d to accept its proposed alternatives to a sale \u201cafter Executive Branch officials \u2018conducted dozens of meetings,\u2019 considered \u2018scores of drafts of proposed mitigation terms,\u2019 and engaged with TikTok as well as Oracle for more than two years\u201d in an attempt to address security concerns.<\/p>\n<\/div>\n On the other hand, it puts Trump\u2019s promise to save the app in an even more strained position. Trump has marketed himself as tough on China, and the entire underpinning of the TikTok bill and the court\u2019s justification for upholding it rests on the government\u2019s own assessment of its national security risk. He\u2019s been short on specifics of what he\u2019d do to spare the app,\u00a0telling\u00a0NBC News<\/em><\/a>\u00a0<\/em>he will \u201cmake it so that other companies don\u2019t become an even bigger monopoly.\u201d\u00a0<\/strong>Saving TikTok could mean instructing the DOJ to not enforce the law, assuming SCOTUS doesn\u2019t strike it down. Or it could mean finding a buyer for the app \u2014 but that would require China\u2019s government to actually allow selling it<\/a>.<\/p>\n<\/div>\n<\/div>\n\u201cFortress America\u201d<\/h3>\n<\/p>\n
Singling out TikTok<\/h3>\n<\/p>\n
Fifth Amendment arguments<\/h3>\n<\/p>\n
Siloing data isn\u2019t enough<\/h3>\n<\/p>\n