Free speech clashed with national security in a federal appeals court in Washington, D.C., which unanimously ruled last Friday that the TikTok app could be banned in the United States.
The court upheld the law, known as the Protecting Americans from Foreign Enemy Controlled Applications Act, which would have required social media apps to sell Chinese ownership to continue operating. The judges wrote that it was “precisely” because of TikTok’s “vast reach” that Congress and the president decided that taking TikTok out of Chinese control was “essential to protecting national security.”
The Sell or Ban Act, signed by President Biden in April, passed with bipartisan support after Congress received a confidential briefing from the intelligence community on China’s ability to use TikTok to spy on Americans and spread Chinese propaganda.
TikTok has operated in the United States since 2018. It immediately exploded in popularity with its short-form video format, content recommendation formula, and easy editing features. It is currently the fifth most widely used social media platform in the United States.
The ban does not criminalize use of the app by TikTok’s 170 million U.S. fans. However, it effectively shuts down TikTok in the U.S. by prohibiting users from downloading or updating from mobile app stores and preventing internet hosting services from supporting the app.
The decision, which relied heavily on warnings from the United States that China could use the app’s parent company, China’s ByteDance, to access data on American users, found that national security trumped TikTok’s right to free speech.
The First Amendment “exists to protect free speech in the United States,” Justice Douglas Ginsburg wrote for the three-justice panel. “Here the government acted solely to protect freedom from foreign enemies.”
Attorney General Merrick Garland called the decision “an important step toward blocking the Chinese government from weaponizing TikTok to collect sensitive information on millions of Americans, covertly manipulate content delivered to American audiences, and undermine national security.” “He praised.
ByteDance has said it cannot and will not sell its U.S. operations. The Chinese government has opposed forced sales, preferring to keep TikTok’s proprietary algorithms and source code under Chinese control.
President-elect Donald Trump’s return to the White House adds uncertainty to what happens next. Trump sought to restrict TikTok during his first term, but he wavered his stance earlier this year, expressing concern that a ban would drive users to rival Facebook.
TikTok enthusiasts have largely believed that TikTok will somehow continue to operate in the U.S., but some content creators are considering what they will do if it doesn’t.
“That would suck,” Mario Riveira, a full-time creator in San Francisco with more than 300,000 TikTok followers, told the Wall Street Journal. His posts are mainly humorous videos featuring street interviews he conducts with strangers. “We’ll have to work harder on other platforms like YouTube and Instagram,” Riveira said.
The removal of TikTok from the United States would be a landmark in the geopolitical debate over control of internet media and user data. Gmail, Google, Facebook, Instagram, YouTube and X are all blocked in China under the “Great Firewall” censorship regime. China does not have a First Amendment. But this is the first time the United States has blocked access to a foreign social media giant.
TikTok has previously sought to address national security concerns by spending billions of dollars on a move known as “Project Texas,” which aims to keep U.S. user data in the country. But much of Project Texas data protection “has evolved to what one employee called a ‘wink and a nod.'”
Ginsburg acknowledged that the court’s decision had a “profound impact” on TikTok users, but added that “the burden was due to (China’s) hybrid commercial threat to U.S. national security, not the U.S. government’s multi-year effort to “It was cooperation,” he said. “To find an alternative.”
The opinion said TikTok’s presence in the U.S. could allow Chinese people to engage in hacking operations targeting U.S. companies such as Equifax and the U.S. Office of Personnel Management. Access to TikTok user data could also allow the Chinese government to track the locations of federal employees and contractors or create personal dossiers for blackmail.
The court found that the threat posed by content manipulation was not that serious because China could distort public discourse for its own purposes. China’s “ability to do so runs counter to the basic principles of freedom of expression.”
The wild card in this case is Donald Trump’s views after January 20th. He could refuse to enforce the ban or take other steps to keep TikTok going. Trump supported the ban during his first administration, but is now expected to end it. “I am optimistic that President Trump will allow (the continued use of TikTok in the United States),” said Rep. John Moolenaar (R-Mich.), chairman of the House Select Committee on the Communist Party of China.
The former president said Facebook poses a greater threat to the American public and said, “If you take TikTok out, Facebook will be bigger and stronger.” The Meta-owned app suspended Trump in 2021 and restored his account in 2023.
Trump used TikTok to reach a younger audience during his campaign. His app followers appear to be over 14 million.
The ban is scheduled to take effect from mid-January. TikTok is expected to go to the Supreme Court, but the judge has free discretion on whether to take up the case.
“The Supreme Court has a solid historical record of protecting Americans’ free speech rights, and we expect them to do so on this important constitutional issue,” said TikTok spokesman Michael Hughes. He criticized the ban or sale laws, saying they were based on “inaccurate” information and were “resulting in blatant censorship of the American people.”
Of course, we don’t know what decision the Supreme Court will make. Freedom of expression is a precious value of the Constitution. Our security is also precious, and the Constitution can never be a suicide promise.
Author and legal analyst James D. Zirin is a former federal prosecutor for the Southern District of New York. He is also the host of a public television talk show and podcast. A Conversation with Jim Zirin.
