TikTok tried to save itself with the First Amendment — and failed

A law that could ban TikTok in the US doesn’t violate the Constitution, a panel of judges unanimously — and forcefully — ruled on Friday. The decision suggests TikTok, which has evaded attempts at a ban or sale for over four years, really could be forced out of the US, unless its Chinese parent company, ByteDance, sells it off by January 19th. TikTok has indicated it will take its fight to the Supreme Court, and President-elect Donald Trump has previously promised to save the app, though he’s been fuzzy on how. But as the deadline approaches, it faces an uphill legal battle.

Gautam Hans, a Cornell Law School professor and associate director of the school’s First Amendment Clinic, thinks it’s unlikely the Supreme Court will upend the DC Circuit’s opinion. “Why would the Supreme Court take this case if they are already pretty deferential to national security in general? There’s no mixed dissent, this was a bipartisan, congressional action,” he says.

Plus, Hans says, the majority opinion is written to “insulate itself from reversal” by assuming a lot in TikTok’s favor and still deciding against it. For example, the court says that its opinion is entirely based on the public record — not the classified evidence that convinced many lawmakers to pass the bill and which TikTok objected to.

Despite the broad government consensus, some online speech advocates say the ruling sets a risky precedent, particularly if it leads to a TikTok ban instead of a sale. “The government cannot shut down an entire communications platform unless it poses extremely serious and imminent harm,” said American Civil Liberties Union spokesperson Patrick Toomey. “And there’s no evidence of that here.”

Here’s why the court thinks it’s legal to (potentially) kick one of the internet’s biggest social networks out of the US.

Speech versus security

TikTok made several claims against the government, saying it unlawfully singled out the company and violated its First and Fifth Amendment rights. The court dismissed these concerns, but it spent the most time on the First Amendment challenge — concluding that any harm to TikTok and its users was outweighed by national security concerns.

TikTok argues that, for a social platform like its app, a ban would amount to suppressing speech for it and its US-based users. But the government argues that a Chinese parent company puts those users at risk. It makes two basic claims: that the Chinese government could access Americans’ data; and that it could make TikTok covertly manipulate its recommendation algorithm, shaping what Americans see.

The court agreed with TikTok that this is a First Amendment issue — rejecting government claims that, among other things, TikTok’s foreign ownership should strip it of speech protections. The majority also agreed to consider strict scrutiny, which sets the highest bar for deciding whether the government has a pressing need and a well-tailored solution if it’s going to potentially limit speech.

These were about the only First Amendment wins TikTok chalked up. For one thing, the court didn’t determine strict scrutiny was necessarily required. A majority opinion, written by Judge Douglas Ginsburg, says that’s a difficult question — but the court didn’t need to answer it because TikTok’s claims would fail no matter what. (Chief Judge Sri Srinivasan wrote his own concurring opinion that conclusively set a lower bar of intermediate scrutiny.) 

For another, the court proved reluctant to overrule Congress and other officials who raised concerns about TikTok. “The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents,” the majority writes. “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.” Under those circumstances, the law could “withstand the most searching review.”

Electronic Frontier Foundation civil liberties director David Greene, who wrote an amicus brief in support of TikTok, said applying strict scrutiny was the right call. But he criticized the overall analysis as “relying heavily on speculation about possible future harms.” (For now, there’s little public evidence that the Chinese government engaged in data access or platform manipulation at any significant scale; given its close ties to Chinese companies, however, it’s extraordinarily difficult to rule that possibility out.)

Nor did it accept that the divest-or-ban rule amounted to censoring TikTok’s speech or that of its users. “Content on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much [People’s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing,” reads the ruling. “What the Act targets is the PRC’s ability to manipulate that content covertly.”

In fact, the ruling argued that a TikTok divest-or-ban rule outright promotes the values of the First Amendment. “Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States,” the court writes. “Here the Congress, as the Executive proposed, acted to end the [People’s Republic of China’s] ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.”

“Fortress America”

Katie Fallow, deputy litigation director at Columbia University’s Knight First Amendment Institute, says that “sounds good in theory but is problematic in practice. Most likely the principle would be used to censor US people with unpopular views that might align with those of foreign states.”

The court’s framing is “Orwellian,” according to Techdirt founder Mike Masnick. “It claims that banning TikTok, and the speech of millions of Americans on the platform, somehow enhances free speech. This is a complete inversion of First Amendment values. The First Amendment protects against government censorship and control of private speech, it doesn’t justify such censorship in the name of preventing foreign influence. The court is essentially arguing that violating the First Amendment is necessary to save it, which is absurd.” 

University of Chicago Law School professor Genevieve Lakier worries the ruling will “turn the First Amendment into Fortress America.” Foreign government manipulation is “worrying,” she writes on Bluesky, but so is domestic government intervention in speech. “The goal of free speech law should be to navigate a pathway [between] these two great dangers.”

Yanni Chen, policy counsel at the nonprofit Free Press, said in a statement that the group is “disappointed to see this court undermine Americans’ First Amendment right to information and access in favor of the government’s overbroad interests in national security.” Chen says the law is “on par with practices by repressive regimes that the United States has historically criticized for their disregard of democratic principles.” So far, however, the court strenuously disagrees.

Singling out TikTok

On top of its First Amendment claims, TikTok has said the law amounts to a bill of attainder, illegally targeting and punishing it specifically. The court definitively dismissed the claim. It found the law satisfies nonpunitive aims and notes that Congress created a framework for potentially applying the divest-or-ban rule to other apps. TikTok’s complaint about lawmakers having questionable motives, meanwhile, “hardly merits discussion.”

George Washington University Law School professor Mary Anne Franks, who sits on a content moderation advisory panel for TikTok that doesn’t play a role in this case, says the court’s dismissive approach to this motivational test is concerning. “The bill of attainder provision is really important because it keeps Congress from coming after any one of us in a really single-minded, scapegoating kind of way,” she says. “It’s really meant to call attention to any attempt by Congress to single out a certain party and say, did you do this because you just don’t like this party?”

Critics of the bill have also repeatedly pointed out that foreign adversaries can easily buy American data from poorly regulated data brokers. But here, the court notes that Congress recently passed a bill banning data brokers from selling Americans’ sensitive information to the same set of foreign adversary countries. While the opinion says the TikTok bill’s survival doesn’t depend on the data broker law existing, it “supports our conclusion that the Act reflects a good-faith effort on the part of the Government to address its national security concerns.”

Fifth Amendment arguments

TikTok’s backup constitutional challenge was the Fifth Amendment — specifically, its guarantee of equal protection under the law and its proscription of seizing private property without compensation. But it also failed. The judges say TikTok’s equal protection claims amount to a complaint that only it was specifically named in the statute, a move the court determined was reasonable because it furthers a governmental interest. “By naming TikTok in the Act, the Congress ensured TikTok-related risks were addressed promptly.” The opinion also notes that TikTok had protracted discussions with Congress and other parts of the government, saying that, in some ways, it actually “received more process” than a company that wasn’t singled out.

The court also agrees with the government that the bill isn’t illegally taking private property from the company, since ByteDance has the chance to make money off of a valuable asset. TikTok views divestiture as impractical, but that’s mainly because the Chinese government has forbidden a sale — which the court says isn’t really their concern. “TikTok would have us turn the Takings Clause into a means by which a foreign adversary nation may render unconstitutional legislation designed to counter the national security threats presented by that very nation,” the court concluded.

Siloing data isn’t enough

Before the current law passed, TikTok spent years attempting to silo its data in a way that would satisfy national security concerns, signing a deal with Oracle as part of a plan called Project Texas. But the court repeatedly slapped down the idea that these kinds of mitigation measures might be a solution. “The problem for TikTok is that the Government exercised its considered judgment and concluded that mitigation efforts short of divestiture were insufficient,” it says. Since the government says it can’t be confident it has enough visibility into the company to truly monitor it and can’t trust in the company’s compliance, “the court can neither fault nor second guess the Government on these crucial points.”

The judges say that TikTok’s mitigation plan itself would raise a host of new issues. “Entangling the U.S. government in the daily operations of a major communications platform would raise its own set of First Amendment questions. Indeed, it could be characterized as placing U.S. government ‘officials astride the flow of [communications],’” they write. “Divestiture poses no such difficulty.”

On one hand, this view emphasizes just how much the court is relying on Congress and the executive branch’s national security assessments. The opinion says that, even if the judges agreed with TikTok on every factual dispute, it would be “wholly inappropriate” to accept its proposed alternatives to a sale “after Executive Branch officials ‘conducted dozens of meetings,’ considered ‘scores of drafts of proposed mitigation terms,’ and engaged with TikTok as well as Oracle for more than two years” in an attempt to address security concerns.

On the other hand, it puts Trump’s promise to save the app in an even more strained position. Trump has marketed himself as tough on China, and the entire underpinning of the TikTok bill and the court’s justification for upholding it rests on the government’s own assessment of its national security risk. He’s been short on specifics of what he’d do to spare the app, telling NBC News he will “make it so that other companies don’t become an even bigger monopoly.” Saving TikTok could mean instructing the DOJ to not enforce the law, assuming SCOTUS doesn’t strike it down. Or it could mean finding a buyer for the app — but that would require China’s government to actually allow selling it.