• by Wendy Davis , December 6, 2024

Rejecting arguments that a TikTok ban violates the First Amendment, a federal appellate panel on Friday upheld a law that will result in a nationwide block on the app by no later than April, unless it's sold by its parent company, China-based ByteDance.

In a 65-page decision, a panel of the D.C. Circuit Court of Appeals ruled that even though a ban on the app will affect speech, it's justified by national security concerns.

“The government has offered persuasive evidence demonstrating that the Act is narrowly tailored to protect national security,” Circuit Judge Douglas Ginsburg wrote in an opinion joined by Neomi Rao and partially joined by Judge Sri Srinivasan.

TikTok indicated it plans to appeal.

“The Supreme Court has an established historical record of protecting Americans' right to free speech, and we expect they will do just that on this important constitutional issue,” the company stated Friday in a post on X. “Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people.”

Absent a successful appeal, Friday's decision means the app could be banned by January 19, unless it's sold first. While President Joe Biden can delay the ban until April, it's not clear whether he will.

President-elect Donald Trump recently indicated he doesn't support a ban -- despite having attempted to outlaw the app himself when he was previously in office. But it's unclear whether Trump can effectively prevent a ban -- either by convincing Congress to repeal the law, or asking the Department of Justice not to enforce it.

The decision issued Friday upheld the Protecting Americans from Foreign Adversary Controlled Applications Act (H.R. 7521), signed into law in April, which prohibits app stores and websites from distributing TikTok unless its divested by ByteDance. The measure was largely driven by fears that the Chinese government may be able to access data about TikTok's users, and to use the app to sway public opinion.

TikTok, which has an estimated 170 million U.S. users, along with a group of content creators challenged the law, contending that it amounted to unconstitutional censorship.

Among other arguments, TikTok said concerns about data were too speculative to justify a ban.

The appellate judges rejected that argument, writing that the app “automatically collects large swaths of data about its users, including device information (IP address, keystroke patterns, activity across devices, browsing and search history, etc.) and location data.”

They added that the app “may also collect image and audio information (including biometric identifiers and biometric information such as faceprints and voiceprints); metadata (describing how, when, where, and by whom content was created, collected, or modified); and usage information (including content that users upload to TikTok).”

“The government has drawn reasonable inferences based upon the evidence it has,” Ginsburg wrote, adding that there is evidence that TikTok employees share data about U.S. users on a platform that ByteDance employees can access.

TikTok had also argued that prohibiting an app due to fears about its content represented an unconstitutional attempt to suppress speech based on viewpoint.

“Congress may not silence a U.S. company’s speech because it wants to block content that Congress deems 'propaganda,'” TikTok argued in its written appeal.

The appellate judges rejected that argument, writing that Congress was worried about the risk of the Chinese “covertly manipulating content on the platform.”

“In this case, a foreign government threatens to distort free speech on an important medium of communication,” Ginsburg wrote, adding that the Chinese government “has positioned itself to manipulate public discourse on TikTok in order to serve its own ends.”

He added that the law was enacted to end China's ability to control TikTok.

“Understood in that way, the Act actually vindicates the values that undergird the First Amendment,” he wrote.

Digital rights advocates blasted the ruling, arguing that the judges gave short shrift to people's free speech rights.

The notion that banning an app bolsters First Amendment values “gets the First Amendment backwards,” George Wang, a staff attorney at the Knight First Amendment Institute at Columbia, tells MediaPost.

“The whole point of the First Amendment is to prevent the government from tilting debate,” he says. “The idea that banning a social media platform is consistent with those values is pretty alarming.”

He adds that while the idea that the Chinese government might manipulate public discourse is concerning, so is the idea that the United States government could attempt to control the ideas and information that people can access.

“The court doesn't take seriously that this ban itself is making the same mistake that the court is chastising others for,” Wang says.

The Knight First Amendment Institute at Columbia University, along with Free Press and PEN America argued in a friend-of-the-court brief that the law was unconstitutional.

Yanni Chen, policy counsel at Free Press, added in a statement that the ban is "plainly unconstitutional" and "on par with practices by repressive regimes that the United States has historically criticized for their disregard of democratic principles."