Law requiring TikTok to be sold or banned upheld by federal court

A federal court in Washington, D.C., upheld a law requiring the sale or ban of TikTok today after the social media company filed a lawsuit against the federal government.

In the lawsuit, TikTok argued that a bill Congress passed in April, which included a potential ban on the popular app, was a violation of First Amendment rights. The federal government claimed in response that the fact that ByteDance, TikTok’s parent company, is owned by China is a potential threat to national security — especially since the platform claims over 170 million Americans use the app every month.

"We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny," Judge Douglas Ginsburg wrote in the majority opinion. "We therefore deny the petitions."

"The First Amendment exists to protect free speech in the United States," Ginsburg continued. "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 response to the decision, TikTok issued a statement indicating that they will appeal the case to the Supreme Court, writing: "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."

"Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people," TikTok continued. "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."

The ruling was also criticized by some civil liberties advocates, who warned that it could set a precedent allowing the government to censor Americans' speech online.

“Banning TikTok blatantly violates the First Amendment rights of millions of Americans who use this app to express themselves and communicate with people around the world,” Patrick Toomey, deputy director of the ACLU National Security Project, said in a statement to Yahoo News. “The government cannot shut down an entire communications platform unless it poses extremely serious and imminent harm, and there's no evidence of that here.”

TikTok is expected to appeal the case to the Supreme Court, which will then make a final ruling on whether the ban will take effect in January if the company is not sold. If the ban does take effect in 2025, it will be illegal for app stores and web hosting companies to distribute or update the TikTok app on American users’ phones.

What was the federal government’s argument?

The federal government argued that it was fair for Congress to set a nine-month deadline for ByteDance to divest from TikTok or have TikTok banned from U.S. app stores, citing “serious concerns about the threat to national security posed by TikTok” which “arise primarily from … its ownership by a Chinese government … which views the United States as a geopolitical rival.”

Read more about the government’s support of a TikTok ban from Yahoo News: Is the government trying to ban TikTok again? What to know about the bill calling for TikTok to divest from its China-based parent company.

What was TikTok’s argument?

TikTok’s lawsuit, which was combined with another lawsuit filed by TikTok creators, claimed the government failed to provide any evidence of the Chinese Communist Party’s involvement in the app and that a ban would be a violation of free speech. The company also argued that such a ban could set a precedent for the government to use “national security” as a reason to shut down other platforms, including newspapers or websites that “own and publish innovative and unique speech.”

Read more about TikTok’s arguments against the government’s ban from Yahoo News: TikTok sues U.S. government. What does it mean for the potential ban of the platform?

Where does President-elect Trump stand?

Donald Trump, who will be inaugurated for a second term in the White House in January, has taken varying positions on TikTok.

As president in August 2020, he issued an executive order threatening to ban TikTok if ByteDance did not sell the app to “protect our national security” from “disinformation campaigns that benefit the Chinese Community Party” — including allegedly “debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.” Multiple federal judges blocked Trump’s executive order to ban TikTok at the time.

While running for reelection this year, Trump seemed to walk back his support for a TikTok ban. In a March interview with CNBC, he said he didn’t support banning the app because it would only drive more users to Facebook which, he called the “enemy of the people.”

Then in June, Trump launched his own TikTok account to help with his 2024 presidential campaign, which now has more than 14 million followers (although he has not posted since Election Day). Biden also started a TikTok account for his own reelection campaign around the same time, despite having signed the bill to ban the app two months earlier.

In a Truth Social post from September, Trump also said he would “save TikTok in America” if he won the election.

While Trump seems to support TikTok, Project 2025, a conservative blueprint for the next Republican presidential administration created by the Heritage Foundation, is against the app. Trump claims he has “nothing to do” with Project 2025; however, Trump’s choice for Federal Communications Commission (FCC) chair, Brendan Carr, and his pick for the head of the CIA, John Ratcliffe, were two of the Project 2025 authors who have been open about wanting the TikTok ban.

In addition to Trump and Biden, other government officials who have publicly condemned TikTok have also joined the platform.

This includes members of Trump’s incoming administration, like Vice President-elect JD Vance, who has more than 2 million followers and who said he supported the ban in March, and press secretary Karoline Leavitt, who has over 37,000 followers despite calling the app the “bane of our society right now” in a December 2023 Fox News interview.

But then there are politicians like Tulsi Gabbard, a former Democratic member of Congress and Trump’s nominee for director of national intelligence, as well as Robert F. Kennedy Jr., his pick to run the Department of Health and Human Services, who have both criticized the TikTok ban while maintaining more than 1 million followers each on the app.

What would a ban look like for TikTok users in the U.S.?

If ByteDance is unable or unwilling to sell TikTok within the allotted time frame and the ban officially goes into effect, it will be illegal for app stores and web hosting companies in the United States to distribute or update the app.

India, which banned TikTok along with dozens of other Chinese-owned apps four years ago following a military clash along the India-China border, offers an idea of what that could look like here. India had about 200 million TikTok users at the time, making it the country with the most users outside of China.

Within months of the ban, India’s millions of TikTok users flocked to Google’s YouTube Shorts and Instagram’s Reels. U.S. users could follow a similar path if TikTok is banned here, an outcome that would seem to contradict both Trump’s and Biden’s concerns about allowing certain tech giants to gain too much power and influence.