Vibe Check on TikTok: Legal Changes May Force App to Take the L

The future of TikTok is on the table in the United States. As has been widely covered, in April 2024, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”), which conditionally banned TikTok in the U.S. should its parent company, ByteDance Ltd., fail to divest its ownership in the U.S. version of the app. TikTok has now challenged the Act, arguing that it violates the First Amendment. On January 10, 2025, the Supreme Court will hear TikTok’s challenge, less than 10 days before the ban is to go into effect.

The Rationale Behind TikTok’s Impending Ban

On December 6, 2024, the D.C. Court of Appeals issued an opinion finding, among other holdings, that the Act does not violate the First Amendment, noting that it was applying “longstanding” principles of free speech to “somewhat novel facts.”[1] In examining the Act under strict scrutiny, the Court of Appeals highlighted the “persuasive” evidence offered by the federal government that the Act was the result of multiple years of effort by successive presidents, both under President Biden and President Trump, and Congress to address potential national security risks imposed by the platform. Specifically, the Act attempts to address risks posed by foreign adversaries, specifically China, which has adopted laws enabling it to not only access, but use, data held by Chinese companies, such as TikTok’s parent company. This would, potentially, allow the Chinese government to access personal information about U.S. citizens (keep in mind that TikTok has more than 170 million users located in the United States). While TikTok attempted to negotiate mitigation measures to address the concerns of the U.S. government, the concerns remained due to the lack of oversight available to determine compliance with such measures.

What You Can Expect on Jan. 19

TikTok appealed this decision and sought an emergency injunction from the Court of Appeals to delay the ban from going into effect until it has been considered by the Supreme Court. On December 13, 2024, the appeals court denied TikTok’s request, noting that TikTok was essentially requesting an injunction “against the enforcement of a presumptively valid Act of Congress” rather than a stay of a court order.[2]  With the ban going into effect on January 19, 2025, it seems likely that TikTok will be unavailable in the U.S., at least for some period of time, until resolution of the appeal in the Supreme Court.

Forecasting What’s Ahead

The pending appeal, obviously, has gained traction with many TikTok users in the U.S., with one portion of creators, largely those with large followings who likely have been successful in monetizing the app, calling for the Supreme Court to overturn the decision of the Court of Appeals, and the other portion already preparing to make the transition to another platform once the ban goes into effect, such as Meta’s “Reels” on Instagram and Facebook. Regardless of the outcome of this appeal, it seems likely that the incoming Trump Administration, which had first kickstarted the events leading to this appeal, will continue to push for similar policies. Of note, however, is the incoming administration’s recent request to the Supreme Court, seeking a delay in the implementation of the ban in order for the Trump Administration to attempt to resolve the issue without a ban going into effect.[3]

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[1] TikTok Inc. et al., v. Garland, No. 24-1113, 2024 WL 4996719, Dec. 6, 2024.

[2] TikTok Inc. et al.., v. Garland, No. 24-1113, Document #2089581, Dec. 13, 2024, https://storage.courtlistener.com/recap/gov.uscourts.cadc.40861/gov.uscourts.cadc.40861.1208689949.0.pdf.

[3] The Trump Administration filed what is known as a “friend of the court” brief, as it is not a party to the underlying case, noting that a delay would allow the administration to “pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s national security concerns.” https://www.cnn.com/2024/12/27/politics/tiktok-supreme-court-trump-biden-briefs/index.html