A panel of three judges dismissed on December 6 TikTok, ByteDance, and a collective of TikTok users’ challenge against a legislation mandating the app to dissociate from the Chinese communist government to remain operational in the United States. TikTok is now at risk of a ban effective January 19, 2025, unless President Joe Biden grants a 90-day extension, as the company contends that the regime in China will prevent any sale to a non-Chinese entity. This situation arises from the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which Biden signed into law in April, prohibiting apps owned by foreign adversaries from functioning within the U.S.
The appeal was presented before a panel of judges, including U.S. Court of Appeals for the District of Columbia Circuit Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas Ginsburg. Petitioners claimed that the law is unconstitutional, infringing upon users’ First Amendment rights regarding free speech.
The U.S. government contended that the statute does not target the content of the app but rather its ownership concerning national security regulations. According to Ginsburg’s opinion for the panel, “The Act satisfies strict scrutiny.” He added, “We emphasize from the outset that our conclusion here is fact-bound.”
The protracted efforts made by both branches of the government to investigate the national security threats posed by TikTok and to consider remedies put forth by TikTok significantly support the Act’s validity. TikTok indicated intentions to take the matter to the U.S. Supreme Court, although it remains uncertain whether the court would entertain an emergency petition before the January 19, 2025, cutoff.
TikTok expressed, “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.” The judges were convinced that the Chinese communist regime posed a national security risk, referencing notable instances of cyberattacks and cyberespionage backed by the Chinese state.
The government began scrutinizing TikTok in 2018, and from 2019 onwards, it engaged in numerous discussions with TikTok and its parent company, ByteDance, to seek a resolution that wouldn’t involve divestment. Washington was not content with TikTok’s final proposal made in August 2022, believing it failed to address security concerns adequately. Consequently, federal lawmakers proposed legislation necessitating ByteDance’s divestment from TikTok.
The underlying security issue is that Chinese national security laws mandate all companies operating in China to comply with requests from the Chinese Communist Party (CCP) to provide data, even if this conflicts with laws in the data’s country of origin. The panel also dismissed TikTok’s claim that it was unfairly targeted, asserting that data collection was not the government’s principal concern.
The petitioners did not “identify any company operating a comparable platform in the United States with equivalent connections to the PRC,” the judges wrote, finding that the executive and legislative branches’ multiyear efforts to work with TikTok toward a solution showed that it was a legitimate “pressing concern.”
PRC refers to communist China’s official name, the People’s Republic of China.
Judges Say CCP Could Violate Users’ First Amendment Rights
The judges also ruled that potential content manipulation by the Chinese regime could infringe on Americans’ First Amendment rights.
“In this case, a foreign government threatens to distort free speech on an important medium of communication,” the opinion reads. “Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals.”
The judges wrote that the law does not attempt to influence content on TikTok, but only acts to prevent a foreign adversary from influencing this content. PAFACA does not address content and would allow TikTok to host the same content under new ownership.
TikTok had argued that the government could not prove the Chinese regime had manipulated content on the app. The government had submitted piecemeal evidence of content manipulation, which it admitted did not point to a particular source, along with evidence of the CCP’s foreign influence campaigns. Judges noted that TikTok would not deny allegations that the Chinese regime was manipulating content.
“Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC,” the opinion reads. “Its silence on this point is striking.”
Lawmakers Respond
House Select Committee on the CCP ranking member Rep. Raja Krishnamoorthi (D-Ill.), who co-authored PAFACA, said the ruling was a positive one for national security.
“With today’s opinion, all three branches of government have reached the same conclusion: ByteDance is controlled by the Chinese Communist Party, and TikTok’s ownership by ByteDance is a national security threat that cannot be mitigated through any other means than divestiture,” he stated.
“Every day that TikTok remains under the Chinese Communist Party’s control is a day that our security is at risk.”
House Select Committee on the CCP Chair Rep. John Moolenaar (R-Mich) stated the divestiture would end the CCP’s ability to “exploit ByteDance’s control over TikTok to undermine our sovereignty, surveil our citizens, and threaten our national security.”
Moolenaar expressed confidence that President-elect Donald Trump could facilitate a sale of TikTok to an American company.
“I am optimistic that President Trump will facilitate an American takeover of TikTok to allow its continued use in the United States and I look forward to welcoming the app in America under new ownership,” he said.
On the campaign trail, Trump had echoed the national security concerns about TikTok but said he would be able to get the app to sell. He had said he was not in favor of a ban, as the app’s exit from the market could give social media giants such as Meta a monopoly.
Former Vice President Mike Pence, founder of Advancing American Freedom, commended the ruling and urged Trump to hold TikTok to the divest-or-ban law.
