A federal appeals court on Friday cited national security concerns as it upheld a law requiring China-based ByteDance to sell the popular social media app TikTok next month or face an effective ban in the United States.
The unanimous ruling by a three-judge panel of the U.S. Court of Appeals in Washington, D.C., rejected TikTok’s argument that the law is unconstitutional and violates the First Amendment rights of the 170 million Americans who use the app.
President Joe Biden signed the law in April after members of Congress from both parties raised concerns about TikTok’s alleged connections to the Communist Chinese government.
If ByteDance fails to sell TikTok by Jan. 19, the law would require app store companies, such as Apple and Google, and internet hosting providers to stop supporting TikTok, which would effectively ban the app.
President-elect Donald Trump has not said whether he will enforce the ban when he takes office next month.
The appeal court in its majority opinion found that the U.S. government had “offered persuasive evidence demonstrating that” the divestment law “is narrowly tailored to protect national security.”
The opinion noted that TikTok “never squarely denies that it has ever manipulated content at the direction of the” People’s Republic of China.
“On the merits, we reject each of the petitioners’ constitutional claims,” wrote Judge Douglas Ginsburg in the opinion.
“As we shall explain, the parts of the Act that are properly before this court do not contravene the First Amendment to the Constitution of the United States, nor do they violate the Fifth Amendment guarantee of equal protection of the laws; constitute an unlawful bill of attainder … or work an uncompensated taking of
private property in violation of the Fifth Amendment,” the opinion said.
Ginsburg noted that the law was the result of “extensive, bipartisan action by the Congress and by successive presidents.”
“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 PRC,” the judge wrote.
Rep. Troy Balderson, R-Ohio, in March, called TikTok “a surveillance tool used by the Chinese Communist Party to spy on Americans and harvest highly personal data.”
Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project, condemned Friday’s ruling, saying it “sets a flawed and dangerous precedent, one that gives the government far too much power to silence 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,” Toomey said. “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 and ByteDance can ask that their appeal be reconsidered by the full lineup of judges in the D.C. federal circuit, but such requests are often rejected.
The company can ask the U.S. Supreme Court to hear the case, but there is no automatic right of appeal to that court.
A source close to the company told NBC News that it will seek an injunction pending a planned petition to have the Supreme Court take the case.
In a September post on his own social media app, Truth Social, Trump wrote that he was not “doing anything with TikTok, but the other side is going to close it up.”
“So if you like TikTok, go out and vote for Trump,” the now-president-elect wrote at the time.
Trump transition spokeswoman Karoline Leavitt told CNBC in November that the president-elect “will deliver” on his campaign promises.
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