A federal appeals court ruled Friday that the federal government can tell a foreign-owned website that it must either sell itself to an American owner or be banned.
TikTok is one of the most popular social media sites on the planet, with more than a billion monthly active users worldwide and 170 million in the United States. Both Democrats and Republicans have long complained that the app—owned by ByteDance, a company based in China—is a potential vector for Chinese propaganda.
Much of the controversy stems from the level of control that the People's Republic of China (PRC) demands over the private companies operating within its borders. The theory goes that Beijing could force ByteDance to turn over TikTok user data, or manipulate user algorithms to promote content favorable to the Chinese Communist Party.
Given China's well-earned reputation as a repressive state, those could conceivably happen—though the key word there is conceivably. While many lawmakers have insisted that TikTok is an active national security threat, they have presented no evidence for this, at most claiming to have seen classified information that affirms their warnings.
During his first term, President Donald Trump threatened to ban TikTok outright unless it were purchased and operated by an American company. (Trump has reversed course since leaving office, now promising to "save" the app.) And this year President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act. Singling out TikTok and ByteDance by name, the law made it functionally illegal for "a foreign adversary controlled application" to operate within the United States, or for any other entity to provide "internet hosting services to enable the distribution, maintenance, or updating" of the app.
The law defined the term "controlled by a foreign adversary" to include not only companies owned wholly by Chinese entities but also one in which a citizen of an adversarial nation "directly or indirectly own[s] at least a 20 percent stake." In other words, even if the overwhelming majority of a company's shares were owned by Americans, it could be banned or forced to divest so long as the remaining shares were held by Chinese, Russian, or Iranian citizens.
In order to continue operating within the United States, the only recourse would be to sell TikTok to an American company by January 19, 2025—Joe Biden's last full day in office.
TikTok and ByteDance sued, asking courts to declare the law unconstitutional. "For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban," the lawsuit argued. Lawmakers' "speculative concerns fall far short of what is required when First Amendment rights are at stake."
The plaintiffs claimed that the law's restrictions were subject to strict scrutiny—the highest standard of review that a court can apply to an action, reserved for potential burdens on fundamental constitutional rights. "The Act represents a content- and viewpoint-based restriction on protected speech," the lawsuit said, and the law's divest-or-be-banned provision constitutes "an unlawful prior restraint."
This week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled against the plaintiffs, finding "the Government's justifications are compelling" and that it did not violate the First Amendment for the state to single out one company for disfavored treatment.
"We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny," Senior Judge Douglas Ginsburg wrote for the majority. "We therefore deny the petitions."
Ginsburg notes that while the law does require "heightened scrutiny," it satisfies the requirements of strict scrutiny because of how narrowly tailored it was: "The Act was the culmination 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."
In fact, that "national security threat" was not very "well-substantiated" at all—but the court didn't seem to mind.
"TikTok contends the Government's content-manipulation rationale is speculative and based upon factual errors," Ginsburg wrote, referring to lawmakers' concerns that Beijing could manipulate content on TikTok to promote Chinese propaganda. "TikTok fails, however, to grapple fully with the Government's submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States." But "the Government is aware 'that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China'" and "'have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.'"
Notably, there is no allegation that TikTok has done this in the United States. But the judges were apparently unbothered by that detail.
"It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government's lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok," Ginsburg shrugs. "In any event, the Government reasonably predicts that TikTok 'would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes' in the United States."
The court's decision is yet another instance where vague claims of "national security" trump individuals' First Amendment rights. Claiming that Congress has the authority to force a company to sell one of its holdings—not through an established power like antitrust, but simply because they don't like how it could be used in the future—is not only a weak justification; it is a plainly unconstitutional one.
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