Federal Appeals Court Upholds TikTok Ban As January 19 Divestiture Deadline Approaches
UPDATED, with comment from the company: TikTok will have to divest itself from its Chinese ownership by Jan. 19 or face being unavailable in the United States, after a federal appeals court rejected the social media giant’s efforts to sideline a federal law.
Congress overwhelmingly passed legislation to force a sale of TikTok, amid national security concerns, and the company challenged the new law in court.
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But the three-judge federal appellate panel, in a unanimous ruling, wrote, “The First Amendment exists to protect free speech in the United States. Here the government acted solely to protect that freedom from a foreign adversary and to limit that adversary’s ability to gather data on people in the United States.”
The company signalled that it would appeal to the Supreme Court, which it said “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 added, “Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people. The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”
President-elect Donald Trump, who in his first term initiated the effort to force a TikTok divestiture, now has indicated that he opposes such a move.
The law requires ByteDance to sell TikTok or face a ban on app stores and other hosting platforms.
The judges found that the law satisfied a First Amendment strict scrutiny, concluding that the government “has offered persuasive evidence demonstrating that the Act is narrowly tailored to protect national security.”
“The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents,” the judges wrote. “It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the” Chinese Communist party, or the PRC.
The judges noted that ByteDance “is subject to PRC laws requiring cooperation with the PRC,” and found it convincing that the company would comply if asked to manipulate TikTok content for censorship, propaganda or other “malign purposes.”
The judges wrote, “In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to
manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States.”
With 170 million users in the U.S., TikTok has been an increasingly influential platform in the U.S., and both presidential campaigns embraced the platform in the recent election, despite the efforts to restrict it.
More to come.
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