TikTok Ban Nears as Appeals Court Upholds Divestiture Law

WASHINGTON, Dec. 6, 2024 – A federal appeals court panel unanimously upheld a law Friday that could result in TikTok being banned in the United States in just a few weeks.

A panel of the U.S. Court of Appeals for the D.C. Circuit denied TikTok’s petition to overturn a law requiring its Chinese parent company, ByteDance, to divest its U.S. operations by Jan. 19, 2025, or face a nationwide ban.

The court's decision that the law survived strict scrutiny — a rigorous standard almost never met — made a strong statement about the weight of the government’s national security concerns in this case. Strict scrutiny is the highest standard of judicial review used by courts to determine whether a law that restricts a constitutional right is justified.

“The question whether intermediate or strict scrutiny applies is difficult because the TikTok-specific provisions are facially content neutral,” wrote Circuit Judge Douglas Ginsburg in the court’s opinion. “Yet the Government justifies the Act in substantial part by reference to a foreign adversary’s ability to manipulate content seen by Americans.”

Ultimately, the judicial panel concluded that the law would withstand even the highest level of scrutiny. They rejected TikTok’s First Amendment challenge, affirming that the law’s purpose was to protect free speech from foreign interference. Two of the judges were nominated by Republican presidents and one by a Democratic president.

“The First Amendment exists to protect free speech in the United States,” the court wrote. “Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States. For these reasons, the petitions are denied.”

TikTok and ByteDance — another plaintiff in the lawsuit — are expected to appeal to the Supreme Court. Legal experts suggest the high court could issue a stay, potentially delaying the January 19 deadline.

The ruling adds political uncertainty to TikTok’s future, as President-elect Donald Trump’s stance on the issue has shifted. While Trump signed an executive order attempting to ban TikTok during his first term, he recently stated opposition to such actions, though his incoming administration includes prominent figures advocating for a ban. 

Trump could, at the very least, slow the ban from being enforced. Under the Protecting Americans From Foreign Adversary Controlled Applications Act, the president can extend the deadline by 90 days if there has been "significant progress toward a sale."

The law, signed by President Joe Biden in April, reflects years of bipartisan concern in Washington over TikTok’s connections to China. U.S. officials have cited potential national security risks, arguing that ByteDance could be compelled by Beijing to provide user data or manipulate content on the platform. 

TikTok, which in response sued the U.S. government in May, denied these allegations. The company’s attorneys argue that the U.S. has not provided evidence to show that TikTok has shared data with the Chinese government or manipulated content for Beijing’s benefit. 

ByteDance now faces a high-stakes deadline to either divest TikTok’s U.S. operations or risk losing access to one of its largest markets. The company’s next move — likely appealing to the Supreme Court — will determine whether TikTok’s more than 170 million American users can continue using the app in the months ahead.

If ByteDance does not comply with the divestiture requirement by the deadline, the law mandates several enforcement actions. Apple and Google would be required to remove TikTok from their app stores, preventing new downloads and updates to the app. Additionally, web hosting services would be banned from supporting TikTok, potentially disrupting the app's functionality for existing users.

For users who already have TikTok installed on their devices, the immediate impact would be limited. However, over time, the inability to update the app and the potential loss of hosting support could lead to performance issues or even complete inaccessibility. While users may not be explicitly required to delete the app, the imposed restrictions would effectively render it unusable eventually.