DC Circuit rejects TikTok’s First Amendment defense, opening door for January ban

WASHINGTON (CN) — A D.C. Circuit panel ruled on Friday that social media giant TikTok could**** not**** stave off a looming nationwide ban of the app early next year, finding the federal government’s effort to force its divestiture from its Chinese parent company constitutional.

The deadline, set in the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act, would require parent company ByteDance to find an American buyer to host a stateside version of the app before Inauguration Day Jan. 20.

The three-judge panel found that determinations by President-elect Donald Trump in 2019, President Joe Biden in 2021 and by Congress that China is a foreign adversary justified the statute and sunk TikTok’s First Amendment arguments.

U.S. Senior Circuit Judge Donald Ginsburg wrote in the panel’s opinion, “Content 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’s Republic of China propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”

“What the act targets is the PRC’s ability to manipulate that content covertly,” the Ronald Reagan appointee said. “Understood in that way, the government’s justification is wholly consistent with the First Amendment.”

The government’s claim that the statue is necessary to end Chinese access to Americans’ personal data further supported its constitutionality, the judges found. Ginsburg cited Supreme Court precedent that requires courts to afford “great weight” to national security judgments, especially those made by the president.

The panel found that, while the federal statute’s focus on TikTok required a First Amendment analysis, the statute did not violate free speech concerns because it did not target specific types of speech and is therefore content neutral.

Instead, the statute only requires that China no longer control TikTok and has nothing to do with the topics discussed on the app, Ginsburg wrote.

TikTok spokesperson Michael Hughes said in an emailed statement that the company will appeal to the Supreme Court, which “has an established record of protecting Americans’ right to free speech.”

“Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people,” Hughes said. “The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the U.S. and around the world on Jan. 19.”

The panel, led by U.S. Chief Circuit Judge Sri Srinivasan, a Barak Obama appointee, presided over nearly two hours of arguments in the ceremonial courtroom at the E. Barrett Prettyman Courthouse — a room reserved for cases of national consequence — on Sept. 16.

U.S. Circuit Judge Neomi Rao, a Donald Trump appointee, rounded out the panel.

TikTok argued that the January deadline for divestiture was nearly impossible to meet. If the company was able to find a U.S.-based buyer in time, it would place stateside users on a virtual island disconnected from the rest of the globe.

The panel’s decision drew criticism from legal experts such as Anupam Chander, professor of law and technology at Georgetown University, who told Courthouse News in an email that Friday’s decision “dims TikTok’s prospects for survival” in the U.S.

“The court repeatedly and explicitly defers to the government on its national security claims,” Chander, who filed an amicus brief supporting TikTok’s First Amendment position, said. “The court adopts the government’s claim that TikTok represents a ‘hybrid commercial threat,’ using language that is used by the hardliners against China in the U.S. government.”

At oral arguments, Andrew Pincus, of Washington firm Mayer Brown, represented TikTok and ByteDance and said a ban would directly violate the core of the First Amendment by restricting the speech of a single platform based on specific viewpoints on the app. He pointed to posts supporting and spreading awareness about Israel’s war against Palestinians and Lebanon.

Chander noted that the panel did not heavily weigh explicit claims by the statute’s congressional sponsors, including former Republican U.S. Representative Mike Gallagher, who accused the platform of “brainwashing” young Americans by promoting “pro-Hamas” content.

“The court diminishes the congressional sponsors’ statements that TikTok was promoting speech they didn’t like — a clear First Amendment violation — as simply ‘stray’ remarks in congressional proceedings,” Chander said.

If the high court does not intervene, TikTok could petition Trump, who originally tried to force the app’s divestiture but recently pledged to “save” the app, after he takes office on Jan. 20.

The case stems from a lawsuit filed by TikTok at the D.C. Circuit to block the ban, which it described as an obvious, extraordinary and unconstitutional restriction of speech.

Lawmakers slipped a sweeping foreign-aid package into the act that also included around $95 billion in aid for Ukraine, Israel and Taiwan. The act passed with a wide bipartisan margin as Congress argued the platform posed a national security threat. Biden signed it into law April 24.

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