Appeals Court Upholds the TikTok Ban

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TikTok is probably going away soon. A law passed earlier this year required China’s Byte Dance to sell off the US part of their business or face being banned next month. TikTok sued claiming the law was unconstitutional under the First Amendment. Today a federal appeals court ruled the ban could stand.

The company argued that the law unfairly singled out TikTok and that a ban would infringe on the First Amendment rights of American users.

The judges disagreed with TikTok’s argument. They said the law was “carefully crafted to deal with only control by a foreign adversary,” and didn’t run afoul of the First Amendment. “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,” the judges wrote on Friday.

American lawmakers and intelligence officials have said that TikTok poses a national security threat under ByteDance. They say that the Chinese government’s oversight of private companies would allow it to use the app to retrieve sensitive information about Americans or to spread propaganda, though they have not publicly shared evidence that this has occurred. They have also noted that apps like Facebook and YouTube are banned in China and that the country does not allow TikTok there.

As I’ve said before, the most shocking thing about this entire case is the hypocrisy of China, a police state which monitors and controls all internet traffic, threating those who speak ill of the communist dictatorship with arrest. These are the people demanding their rights under the US First Amendment. But as the judge who wrote today’s opinion concluded, the First Amendment isn’t at stake here.

“The First Amendment exists to protect free speech in the United States,” said the court’s opinion, which was written by Judge Douglas Ginsburg. “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.”…

In the court’s ruling, Ginsburg, a Republican appointee, rejected TikTok’s main legal arguments against the law, including that the statute was an unlawful bill of attainder, or a taking of property in violation of the Fifth Amendment. He also said the law did not violate the First Amendment because the government is not looking to “suppress content or require a certain mix of content” on TikTok.

“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 PRC propaganda (or any other content) as they desire on TikTok or any other platform of their choosing,” Ginsburg wrote, using the abbreviation for the People’s Republic of China.

Byte Dance has already said it cannot sell TikTok because the Chinese government won’t allow its algorithm to be sold to a foreign buyer. If true then this should be the end of the line for TikTok in the US. On January 19 the ban will take effect.

There is some talk that president-elect Trump might intervene in some way. I’m not sure what he could do at this point. The bill has been passed and now upheld. It will take effect before he even takes office. I guess he could push Congress to quickly reverse course but I’m not sure that’s a winning move. Trump may also be feeling less charitable toward China after they hacked his phone and, quite possibly, listened in on his and J.D. Vance’s phone calls.

The EU is also taking a look at banning TikTok after files suggested Russia used the app to influence an election in Romania.

Declassified files released by Romanian authorities earlier this week suggest that a pro-Russia campaign used the messaging app Telegram to recruit thousands of TikTok users to promote Georgescu.

European Commission officials said they asked the TikTok to comment on the files and to provide information on actions that it’s taking in response. It’s the second time the commission has asked the TikTok for information since the election’s first round of voting on Nov. 24, and comes a day after it ordered the Chinese-owned platform to retain all election-related files and evidence…

“We are concerned about mounting indications of coordinated foreign online influence operation targeting ongoing Romanian elections, especially on TikTok,” Henna Virkkunen, the commission’s executive vice-president for tech sovereignty, security and democracy, said in a post on X.

Personally, I support the ban. It will inconvenience some people who are making a living on the app but it won’t interfere with their right to speak, which isn’t dependent on social media apps. Also, there are half a dozen other apps they can join from X to Facebook to YouTube to Bluesky if they want to continue spouting off about the wisdom of Osama bin Laden or other topics. What we definitely don’t need is China having a backdoor to information on fully half of America or an easy way to influence the public by boosting or suppressing topics in keeping with its own views. Simply put, American free speech should never become casually reliant on a communist Chinese-owned technology.