Clock is ticking: TikTok could go dark in U.S. on Jan. 19 as federal court upholds ban

A federal appeals court in Washington ruled Friday to uphold a law banning TikTok in the U.S. unless it’s sold by Jan. 19.

The three-judge panel from the D.C. Circuit Court of Appeals was unanimous in its move, rejecting the company’s request to block the law over First Amendment concerns.

“The parts of the [Protecting Americans from Foreign Adversary Controlled Applications 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,” stated the opinion, authored by Judge Douglas Ginsburg, a Reagan appointee.

The opinion reasoned that the ban isn’t related to certain messages or speech, but is neutral, and relates to concerns over a foreign adversary.

“The provisions of the act before us are facially content neutral because they do not target speech based upon its communicative content,” the opinion stated. “The TikTok-specific provisions instead straightforwardly require only that TikTok divest its platform as a precondition to operating in the United States. On its face, the act concerns control by a foreign adversary and not ‘the topic discussed or the idea or message expressed.”

The three-judge panel heard arguments in September over lawmakers’ move to ban the Chinese-owned video-sharing platform.

TikTok argued that shutting it out in the U.S. would violate the First Amendment.

The ban, approved by Congress and signed by President Biden in April, will go into effect if ByteDance, the owner of TikTok, hasn’t divested itself of the app, which has 170 million American users.

The case is expected to be appealed to the Supreme Court.

“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,” said TikTok spokesperson Michael Hughes. “Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people.”

He said the law “will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”

The legislation won bipartisan support in Congress from lawmakers concerned that TikTok poses a national security threat by collecting users’ data. The concern is that data collected by the company could be utilized by the Chinese government.

The Justice Department has said TikTok received direction about content on its platform from the Chinese government, The Associated Press reported.

TikTok and ByteDance sued the federal government in May and asked the federal appeals court, which expedited the case, for an injunction to block the ban.

With Donald Trump becoming president next month, it’s unclear if the Justice Department will continue to back the law.

Mr. Trump’s position on TikTok has changed over time. He initially recognized it as a national security threat but has softened on the platform and has an account. He also posted about it on Truth Social in September, saying he would “save TikTok in America.”

He will take office Jan. 20, one day after the law is set to take effect unless the Supreme Court were to step in and intervene.

However, Mike Pence, Mr. Trump’s first vice president and currently the founder of Advancing American Freedom, said the court’s move was a win for the privacy of Americans.

“TikTok is digital fentanyl for America’s youth, and can be used as a technological weapon by the Chinese Communist Party. The incoming Trump administration must be clear-eyed about the strategic and economic threat China is to our nation, and uphold the divestment of TikTok from the CCP for the security and privacy of the American people,” he said.

The American Civil Liberties Union slammed the decision.

“This ruling sets a flawed and dangerous precedent, one that gives the government far too much power to silence Americans’ speech online,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “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. 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.”

The appeals court, meanwhile, reasoned the law was narrowly tailored to pass constitutional scrutiny, declining to block the law’s enforcement.

“The problem for TikTok is that the government exercised its considered judgment and concluded that mitigation efforts short of divestiture were insufficient, as a TikTok declarant puts it, to mitigate ‘risks to acceptable levels,’” the opinion read.

“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,” the court said, rejecting TikTok’s challenge for review.

A spokesperson from ByteDance did not immediately respond to an inquiry about whether the company plans to go to the high court over the decision.