The law Congress passed this year to force the Chinese parent company of social media giant TikTok to either sell the service or face a U.S. ban is constitutional, a panel of federal appeals judges ruled Friday.
The order from a three-judge panel of the D.C. Circuit Court of Appeals preserves the bipartisan law President Joe Biden signed in April forcing ByteDance, the parent company of TikTok, to cease operations in the United States over concerns the platform’s data gathering could be obtained and used by the Chinese Communist Party.
TikTok, ByteDance and a handful of users sued the administration to block enforcement of the law, saying it violated the First Amendment right to free speech and other rights.
The panel on Friday rejected that argument, saying that although the short-form videos produced on the service constitute speech and the shuttering of U.S. operations would limit that speech, that was the result of the Chinese government’s “hybrid commercial threat to U.S. national security,” not the U.S. government’s actions.
“The First Amendment exists to protect free speech in the United States,” Senior Judge Douglas H. Ginsburg wrote for the panel. “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.”
Ginsburg, who was appointed to the court by Republican President Ronald Reagan, and Neomi Rao, a Donald Trump appointee, formed the court’s main opinion. Chief Judge Sri Srinavasan, whom Democrat Barack Obama appointed, wrote a concurring opinion.
TikTok has the option to appeal Friday’s ruling to the full D.C. Circuit or the U.S. Supreme Court. The law is set to go into effect Jan. 19, the day before Trump — who has said he opposes the law even after trying his own TikTok ban during his first presidency — retakes office.
Free speech concerns
Those challenging the law are likely to appeal directly to the Supreme Court and to seek an emergency temporary stay, “given the urgency of the situation,” Jacob Huebert, who represents a plaintiff in the case, said in a Friday interview.
Huebert is the president of Liberty Justice Center, a nonprofit that has litigated high-profile free-speech cases and is representing the libertarian news and commentary channel BASEDPolitics in the TikTok case, arguing that the law unconstitutionally restricts the channel’s reach to its intended audience of Gen Z users.
The government’s national security argument should not have overridden the First Amendment concerns, Huebert said.
“This national security justification that the court relied so heavily on isn’t enough,” he said.
The law would set a dangerous precedent that could be applied in the future to other social media, he added.
“It should trouble you regardless of what you think about TikTok or China in particular because it’s really a threat to Americans’ free speech rights online, across the board,” Huebert said.
Bill sponsors from both parties praise ruling
The bipartisan leaders of the U.S. House Select Committee on the Chinese Communist Party, where the bill was introduced, cheered the decision Friday in a joint statement.
“Today’s ruling is a victory for the American people and TikTok users, and a loss for the Chinese Communist Party, which will no longer be able to exploit ByteDance’s control over TikTok to undermine our sovereignty, surveil our citizens, and threaten our national security,” Chairman John Moolenaar, a Michigan Republican, wrote. “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.”
Ranking Democrat Raja Krishnamoorthi of Illinois said there is no solution other than a sale of TikTok.
“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 said. “Every day that TikTok remains under the Chinese Communist Party’s control is a day that our security is at risk.”
The bill was introduced in March by then-Chair Mike Gallagher, a Wisconsin Republican who has since left Congress, and Krishnamoorthi.
It has dozens of co-sponsors from each party and passed the House 352-65. The Senate cleared the bill in April as part of a larger funding package.
–Jacob Fischler, Florida Phoenix
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