TikTok’s appeal against a United States government ban has failed, with a judge dismissing its arguments that its First Amendment free speech rights are being restricted
An appeals court in the United States has upheld a law passed by Congress earlier in 2024 to ban China-owned video-sharing social media platform TikTok in the US on national security and data protection grounds
The law sailed through the US legislature back in April, after being included in a wider package of aid for Israel, Taiwan and Ukraine. It gives TikTok’s parent, ByteDance, notice to either sell TikTok to a US-based entity or be removed from online app stores for good – with both Apple and Google facing financial penalties if they do not comply.
The law’s passage came amid a growing freeze in relations between the US and China, and a spate of accusations from Western cyber security agencies claiming widespread Chinese cyber espionage.
TikTok appealed against this, but the US Court of Appeals for the District of Columba Circuit today [6 December] unanimously denied this petition.
In the court’s opinion on the case of TikTok and ByteDance Ltd versus Merrick Garland [US attorney general], judge Douglas Ginsberg said the decision had significant implications for both TikTok and its users, because unless ByteDance divests the business by 19 January 2025, or the president grants a 90-day extension, the TikTok platform will “effectively be unavailable in the United States…. Consequently, TikTok’s millions of users will need to find alternative media of communication.”
Ginsberg wrote this burden was attributable to China’s hybrid commercial threat to US security and not the US government, which he wrote has been engaged with TikTok for some time in efforts to find alternative solutions.
Ginsberg also dismissed TikTok’s arguments that a ban infringed its First Amendment rights – the First Amendment, dating back to December 1791, guarantees freedom of speech and the press in the US.
“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 nation and to limit that adversary’s ability to gather data on people in the United States,” he wrote.
“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,” a TikTok spokesperson said, via social media site 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. The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on 19 January 2025.”
According to US news network CNBC, TikTok plans to seek an injunction to have the case heard before the US Supreme Court in Washington DC.
Trump’s change of heart?
The one saving grace for TikTok may yet be the incoming Republican administration led by president elect Donald Trump, who returns to the White House in January for an historic second term.
Prior to the 2020 election Trump had led calls for a ban on TikTok, and came close to achieving this goal. However, after the Biden administration’s legal intervention, he now appears to have had a change of heart. Indeed, back in September, he briefly positioned it as a campaign issue, encouraging TikTok users to cast their vote for him. At the time of going to press, however, Trump had not stated whether he will actually enforce a ban.
Time’s up
Craig Singleton, senior fellow and China program director at the Foundation for Defense of Democracies, who contributed extensively to an amicus brief on which the court heavily relied, said the ruling underscored a growing consensus that time was up for TikTok, at least in its current form.
“The unanimous decision is a clear warning shot to foreign companies operating in sensitive sectors – they must play by the rules or face the consequences,” said Singleton.
“Expect TikTok to pull every lever – lobbying, lawsuits, and public pressure – to stall divestiture. But. the bipartisan appetite for action means the company’s runway is rapidly shrinking.”
The ruling also serves as a bellwether for how the US, and by extension its core allies including the UK, confront tech threats from authoritarian regimes, and for policymakers, the saga so far serves as a test of whether the law can keep up with emerging threats, he said.
“For Beijing, this is more than just about TikTok – it’s a symbolic and strategic loss in the broader tech competition with Washington,” added Singleton. “There can be no doubt that this ruling undercuts Beijing’s ability to use TikTok as a powerful tool for influence, data collection, and narrative control within the US, marking a significant strategic loss.
“China has few meaningful options apart from retaliatory rhetoric or tit-for-tat measures targeting U.S. companies operating in China,” Singleton told Computer Weekly in emailed comments.
“While Beijing is likely to issue strong condemnations, we shouldn’t expect any dramatic responses – China may complain loudly, but with its economy under strain, this is more a diplomatic headache than an immediate crisis.”
