Will the popular TikTok app disappear from the social media landscape in the United States in January 2025 or will the Supreme Court intervene to permit the app to remain in use? With the latest federal court filings, the case of TikTok v. Garland (24-1113) is headed toward the nation’s highest court with the timing of the case’s outcome to be determined.
In April 2024, Congress passed a law, the Protecting Americans From Foreign Adversary Controlled Applications Act, which banned TikTok in the United States due to national security concerns unless its parent company, ByteDance Ltd., divested its ownership in the U.S. version of TikTok. TikTok challenged the law, arguing that it infringed on the First Amendment rights of American users.
On Dec. 6, 2024, the U.S. Court of Appeals for the D.C. Circuit upheld the law. TikTok then said it would appeal to the Supreme Court, and on Dec. 9, 2024, TikTok asked the appeals court to block the law until the Supreme Court could consider the case. On Dec. 11, 2024, the Justice Department petitioned the same court to allow the law to go into effect by denying the injunction. In a per curiam order issued on Dec. 13, 2024, the D.C. Court of Appeals denied TikTok’s request to delay the ban that was due to go into effect on Jan. 19, 2025.
In the order last Friday, the D.C. appeals court made clear that it would not intervene on TikTok’s behalf. “The petitioners have not identified any case in which a court, after rejecting a constitutional challenge to an Act of Congress, has enjoined the Act from going into effect while review is sought in the Supreme Court,” the order read. The three judges said it was at the “Supreme Court’s discretion to determine whether and to what extent to grant any interim injunctive relief while that Court considers a petition for a writ of certiorari.”
With the clock literally ticking on TikTok, several paths are possible. President Joe Biden could extend the divestment deadline by 90 days under the terms of the act. ByteDance could sell the U.S. version of TikTok to an acceptable suitor. For now, the Supreme Court could issue an injunction and decide to hear arguments, or decline consideration of the case. The Supreme Court justice who first considers appeals from the District of Columbia Circuit is Chief Justice John Roberts.
The Case in the Courts
The Protecting Americans From Foreign Adversary Controlled Applications Act was included in an aid package signed by President Biden on April 24, 2024, making it “unlawful for an entity to distribute, maintain, or update . . . a foreign adversary controlled application.” TikTok Inc. and ByteDance Ltd. are listed as “foreign adversary controlled applications” because of their association with China.
On May 7, 2024, TikTok Inc. and ByteDance Ltd., filed a petition in the District of Columbia Circuit appeals court against Attorney General Merrick Garland. Among the various items listed in TikTok Inc.’s petition were several core First Amendment questions. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” TikTok argued.
While the First Amendment protects free speech from government regulation, there are exceptions including speech related to obscenity, defamation, fraud, incitement, fighting words, true threats, and criminal conduct. Another exception exists when the government decides to chill free speech if there is a compelling national security interest.
Another key part of TikTok Inc.’s argument to the appeals court was that its app is engaged in “editorial and publishing activities” and TikTok conducted its own core free speech through its user-driven publishing platform. Therefore, TikTok claimed the law was subject to the most severe constitutional free speech test, called “strict scrutiny.”
Under strict scrutiny, the burden is on the government to prove it has a compelling interest in limiting a constitutional protection such as freedom of speech or press, and it is using a narrowly tailored means via the law to achieve those interests. The government also must prove it is using the least restrictive means possible.
In the D.C. Court of Appeals ruling, the three judge-panel agreed that national security concerns addressed by Congress outweighed any First Amendment arguments. “The parts of the Act that are properly before this court do not contravene the First Amendment to the Constitution of the United States,” wrote Senior Judge Douglas Ginsburg. The panel also disagreed with TikTok’s claims that the act violated TikTok’s Fifth Amendment rights to equal protection and unjust takings. And the appeals court found the act satisfied the First Amendment’s strict scrutiny test.
“The multi-year efforts of both political branches to investigate the national security risks posed by the TikTok platform, and to consider potential remedies proposed by TikTok, weigh heavily in favor of the Act,” Ginsburg wrote. The court found concerns about China’s efforts to collect data in the United States, and the risk of it covertly manipulating content on TikTok as compelling national security interests, and the act was narrowly tailored to further those interests.
“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,” Ginsburg concluded.
Chief Judge Sri Srinivasan believed Congress had satisfied a less demanding First Amendment test, intermediate scrutiny, in passing the law. “Because the record reflects that Congress’s decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.”
For now, if the law remains in effect on Jan. 19, 2025, lawmakers have said they will insist that Apple and Google remove TikTok from their app stores. Users who have downloaded the app will still have access to its content, but without continuing technical support, TikTok says the app will eventually be unusable.
President-elect Donald Trump said during his campaign that he would not allow to the TikTok ban to go into effect. But until the Supreme Court decides to take TikTok’s promised appeal, it remains unclear what actions the executive branch could take when Trump assumes office on Jan. 20, 2025, one day after the ban could be in effect.
Scott Bomboy is the editor in chief of the National Constitution Center.
