D.C. Circuit Upholds Law that Could Ban TikTok

The D.C. Circuit on Friday upheld a federal law that would ban TikTok in the United States unless its Chinese owner, ByteDance, sells the app to a non-Chinese company by January 19, 2025.

The ruling set off a flurry of criticism and widespread concern by TikTok content creators.

The case, TikTok v. Garland, tests the Protecting Americans from Foreign Adversary Controlled Applications Act, signed by President Biden on April 24, 2024. The Act makes it "unlawful for an entity to distribute, maintain, or update" an app controlled by "a foreign adversary." It specifically calls out ByteDance-owned entities, which includes TikTok.

This means that it's unlawful to "distribute, maintain, or update" TikTok, or to provide "internet hosting services to enable the distribution, maintenance, or updating" of it. The prohibition kicks in on January 19.

Importantly, the Act doesn't regulate TikTok itself. Instead, it prohibits third parties from supporting the app in the United States so long as it's owned by a Chinese entity.

But the Act provides for an exemption if ByteDance sells TikTok to a non-Chinese entity.

TikTok sued, arguing that the Act violated the First Amendment. The D.C. Circuit disagreed.

The court first assessed the applicable level of scrutiny. Strict scrutiny would apply if the Act regulated speech based on content; intermediate scrutiny would apply if not. According to the court, "[t]he question whether intermediate or strict scrutiny applies is difficult because the TikTok-specific provisions are facially content neutral, yet the Government justifies the Act in substantial part by reference to a foreign adversary's ability to manipulate content seen by Americans." 

In the end, the court said that it didn't matter, because the Act failed even the more rigid strict scrutiny. The court said that the government had valid compelling interests in protecting national security--"to counter (1) [China's] efforts to collect data of and about persons in the United States, and (2) the risk of [China] covertly manipulating content on TikTok." The court then explained why the Act was narrowly tailored to achieve these interests:

Here the relevant provisions of the Act apply narrowly because they are limited to foreign adversary control of a substantial medium of communication and include a divestiture exemption. By structuring the Act in this way, the Congress addressed precisely the harms it seeks to counter and only those harms. Moreover, as already explained, the Act's emphasis on ownership and control follows a longstanding approach to counter foreign government control of communication media in the United States.