Today, the DC Circuit Court of Appeals issued a decision upholding the TikTok divestment or ban law, officially known as the Protecting Americans From Foreign Adversary Controlled Applications Act (PAFACAA). That means that on January 19, Apple and Google will be required to remove TikTok from their app stores unless a sale occurs (leading to an internal wrangling as the giants embrace their role as law enforcement must).

Although President-elect Donald Trump has expressed interest in “saving” the app from a ban, he has no power to stop the law from taking effect. Apple and Google are expected to comply with the law, facing hundreds of billions of dollars in fines if they don’t remove TikTok from their app stores.

In a statement, TikTok spokesman Mike Hughes said: “The Supreme Court has a proven historical track record of protecting Americans’ right to free speech, and we expect it will do just that on this important constitutional issue.” Unfortunately, that was TikTok ban was designed and enforced based on inaccurate, erroneous 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 United States and around the world on January 19, 2025.”

Below are some passages from the ruling that explain why the court rejected TikTok’s claims that the government’s law violated free speech – and what that means for TikTok now.

A novel reading of the First Amendment

The court noted that some restrictions on free speech in the United States could ultimately increase freedom of speech because they could protect people from the covert manipulation of speech by foreign governments. They acknowledged the role that social media companies play in shaping our systems of discourse, writing:

“At the heart of the First Amendment is the principle that each person should decide for himself what ideas and beliefs are worthy of expression, consideration, and observance. Our political system and our cultural life are based on this ideal. When a government – be it domestic or foreign – suppresses speech because of its message. . . (it) violates this essential right and may manipulate public debate through coercion rather than persuasion.”

This is a new idea that recognizes the extent to which private companies (and the governments they influence) control our digital information ecosystem. The court continued:

“The First Amendment is designed 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 collect data about people in the United States.”

Exam levels

The court ruled that TikTok and the creators who sued the ban had genuine speech arguments — arguments important enough to trigger what the courts called “heightened scrutiny” under the First Amendment. When a court finds that a claim is subject to more stringent scrutiny, it raises the bar for what the government must prove to disprove the claim. To withstand heightened scrutiny, laws must not discriminate based on the viewpoint or content of a person’s speech. The Labor Party, for example, could not have banned TikTok because it believed that pro-Palestinian speech took precedence over pro-Israel speech, or even pro-Chinese speech over pro-American speech. To withstand increased scrutiny, laws must also be tailored to precisely address the problem the government is trying to solve.

When laws require more stringent scrutiny, they are far less likely to survive on appeal because the bar is raised to ensure they do not impede freedom of expression. But in this case, the court ruled that the government’s reasons for passing the law were compelling enough, and that the law itself was narrow enough to outweigh the concerns of TikTok and its creators. They found that the law is thought and content neutral because it focuses on who owns a platform rather than what the platform says.

“The law was the culmination of extensive, bipartisan action by Congress and successive presidents. It was carefully crafted to address only control by a foreign adversary and was part of a broader effort to counter a well-founded national security threat from the People’s Republic of China. In these circumstances, the provisions of the Act before us stand up to careful scrutiny.”

The death of “Project Texas”

Both TikTok and the government pointed to years of negotiations between them as evidence for their view. TikTok has launched an initiative called Project Texas that aims to restrict the flow of data between the US and China and limit ByteDance’s oversight of TikTok’s US operations. It then proposed this project to the Biden administration in a draft national security agreement.

TikTok argued that the Texas project was careful and robust and that the government should have accepted it as a way to address its national security concerns without resorting to a full ban. But the government argued that years of negotiations only showed why TikTok’s plan was inadequate. Here the court gave in heavily to the government:

“In order for us to conclude that the proposed (National Security Agreement) represents an equally or nearly equally effective but less restrictive alternative, we would have to reject the government’s risk assessment and override its final judgment. That would be wholly inappropriate after executive branch officials held dozens of meetings, reviewed dozens of drafts of proposed mitigation terms and worked with TikTok and Oracle for more than two years to craft an acceptable agreement. Respect for the government’s conclusions is appropriate here.”

It also said that the government ultimately simply believed it couldn’t trust ByteDance:

“Fundamentally, adoption of the final NSA proposal should have ultimately depended on the executive branch trusting ByteDance to comply with the agreement, which the administration understandably could not.”

Don’t blame Congress, blame the CCP

In its conclusion, the court acknowledged that its decision would have a “significant impact on TikTok and its users.” However, these users were urged not to blame the US government for the loss of their favorite social media app. Assuming no sale occurs before January 19, the court said:

“The millions of TikTok users need to find alternative communication media. This burden is due to the PRC’s hybrid commercial threat to U.S. national security and not the U.S. government, which has worked with TikTok in a multi-year process to find an alternative solution.”

What happens now?

TikTok will likely argue that it should be allowed to remain online while it appeals the case to the Supreme Court. This will ultimately be a Supreme Court decision – but the DC Circuit indicated today that the courts would not allow the app to continue to operate pending appeal. Unless TikTok is sold by Jan. 19 or receives an extension from President Biden, it “will not be available in the United States, at least for some time,” the court wrote. However, it was noted that even if the app went offline, it could come back under the control of a new owner.

“270 days is a significant amount of time. If TikTok (or a company subject to the law) is unable to divest itself within 270 days, it may do so later, thereby overturning the bans.”

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