TikTok's final countdown

After Trump passes up an opportunity say he will save the app, ByteDance is at a crossroads

Casey Newton

Dec 10, 2024 — 8 min read

(Solen Feyissa / Unsplash)

In April, after years of inaction, Congress moved to force ByteDance to sell off TikTok or otherwise ban the app in the United States. ByteDance immediately challenged the law in court. At the time, the legal scholars I spoke with suggested that the government would have a difficult time proving its case, because of the First Amendment.

The First Amendment, after all, is meant to prevent Congress from banning speech because it dislikes the content of that speech. And in the run-up to the passage of the law, many members of Congress routinely criticized the content of speech on TikTok: it was Chinese propaganda, some of them said; others accused it of being too pro-Palestine. That seemed to give ByteDance an advantage as it headed into court.

In the end, though, it was no advantage at all. On Friday, a federal appeals court ruled that national security interests trumped First Amendment concerns, and that ByteDance must indeed divest itself of TikTok in order for it to operate in the US.

Here are Jacob Gershman, Meghan Bobrowsky and Sarah E. Needleman:

A three-judge panel in Washington, D.C., said Congress has the power to take action against TikTok to protect U.S. interests. The decision relied heavily on warnings from U.S. officials that the Chinese government can exert its will on the app’s parent company, Beijing-based ByteDance, potentially giving it the ability to access U.S. users’ data and manipulate what they see on the platform.

“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,” Judge Douglas Ginsburg wrote for the court.

While TikTok plans to appeal the case, there is no guarantee that the Supreme Court will hear it. And many are skeptical that they will: the court traditionally defers to Congress in matters of national security, and a large bipartisan coalition argued that TikTok poses risks related to Americans’ data privacy and the potential manipulation of the app’s recommendation algorithms.

In the event that the Supreme Court allows the decision to stand, the law requires TikTok to be sold by next month.

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

So what happened?

In The Verge, Lauren Feiner explored how TikTok’s First Amendment arguments failed to carry the day. Somewhat surprisingly, TikTok won two of the key points that it hoped would get the law overturned. The first is that the court agreed that the case had First Amendment implications. The second is that it agreed to consider applying strict scrutiny, the highest standard it offers in speech cases, to the TikTok case.

But as Feiner tells it, in the end the court set aside speech concerns out of deference to Congress. She writes:

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.”

Moreover, the court found that the law would not necessarily result in censorship, so long as TikTok is actually divested. “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 [Chinese] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing,” the ruling reads. “What the Act targets is the PRC’s ability to manipulate that content covertly.”

In the New York Times, First Amendment experts Jameel Jeffer and Genevieve Lakier expressed surprise at the court’s decision. Judges applied very little scrutiny to lawmakers’ claims about the risks posed by TikTok, for example, and claimed that their decision “vindicates” First Amendment values rather than undermines them.

“When a law targets only one media company, or a cherry-picked handful, there is a high risk it is motivated by displeasure with a specific editorial perspective, rather than by the health of the public sphere writ large,” they write. “This is that case.”

They go on: “The Supreme Court should intervene to reject the circuit court’s reasoning, invalidate the TikTok law and encourage Congress to address the very real pathologies of the digital public sphere through broad-based regulation, rather than by targeting particular companies and viewpoints.”

Will Donald Trump save TikTok for ByteDance? No one knows, potentially even Trump himself. Last month, his adviser Kellyanne Conway suggested that he would. (“There are many ways to hold China to account outside alienating 180 million U.S. users each month.”)

But when asked about it in an interview with Meet the Press, “he didn’t say he would save the app from its ban but did seem to imply that ByteDance should sell it.”

(The text of Trump’s answer might actually be worth printing in full, since it’s insane and reminds us what we have to look forward to starting next month:

I used TikTok very successfully in my campaign. I have a man named TikTok Jack, he was very effective, obviously, because I won youth by 30 percent. All Republicans lose youth. I don’t know why. Maybe it’s changing. And last time we were down 30 percent with youth. This time we were up 35 percent with youth.

And I used TikTok, so I can’t really, you know, I can’t totally hate it. It was very effective. But I will say this, if you do do that, something else is going to come along and take its place. And maybe that’s not fair. And really, what the judge actually said was that you can’t have Chinese companies. In other words, they have the right to ban it if you can prove that Chinese companies own it. That’s what the judge actually said.)

In the meantime, Meta stock is closing at new highs. Investors suspect that the ban might be real — and that whatever damage this decision does to the First Amendment, it’s quite clear who is most likely to benefit.

Elsewhere in TikTok trouble: Some TikTokers are promoting their YouTube and Instagram profiles to their followers in preparation for a potential TikTok ban. And TikTok asked the Canadian government to overturn an order that would force ByteDance to shut down the company’s business in Canada.