The U.S. Court of Appeals for the District of Columbia Circuit has ruled that the United States law that forces either a ban or divestiture of TikTok is constitutional. The decision sets up a probable appeal to the U.S. Supreme Court, which could push back the law ahead of its January 19 start date.
A panel of three judges denied TikTok’s claims that the law violated Americans’ Bill of Rights protections. “We reject each of the petitioners’ constitutional claims,” reads the decision. “The parts of the Act that are properly before this court do not contravene the First Amendment to the Constitution of the United States, nor do they violate the Fifth Amendment guarantee of equal protection of the laws; constitute an unlawful bill of attainder, in violation of Article I, § 9, clause 3; or work an uncompensated taking of private property in violation of the Fifth Amendment.”
TikTok launched a legal challenge to the divest-or-ban law shortly after President Biden enacted it in April. Parent company ByteDance filed its own suit, as did a group of creators. TikTok argued that the “obviously unconstitutional” law was “simply not possible” to comply with, since a divestiture would present complicated problems for the storage of TikTok’s source code.
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The divest-or-ban law lost much of its public support in the months following its passage, but the statute’s souring reputation did not change its constitutionality, according to the Appeals Court ruling. The decision claimed that it would be “premature” to rule out the enforcement mechanism behind the law before it even has a chance to go into effect.
Both TikTok and the U.S. Department of Justice are calling for the official Appeals Court decision to be fast-tracked so that the Supreme Court has time to consider the case before the law’s January enforcement deadline. The highest court in the land will have the ability to delay the law’s start date if it chooses to prepare a ruling on TikTok’s argument.
Based on politics alone, the Supreme Court would be likely to uphold the lower judges’ decision. The reelection of President-elect Donald Trump, however, complicates matters. Trump has been clear that he wants to overturn the divest-or-ban law Biden put into place. The DoJ’s involvement in the Supreme Court case could give the Trump administration a chance to work against the incoming decree.
TikTok, which cozied up to conservative elites ahead of Trump’s 2024 reelection to the White House, certainly feels that the Supreme Court will give it a pass. “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,” said TikTok spokesperson Michael Hughes in a statement.
But the Appeals Court decision suggests that the law may not actually have the constitutional holes TikTok sees in it. ByteDance has been adamant that it will not divest TikTok to a U.S.-based buyer. As the January deadline approaches, will the Beijing-based TikTok parent start singing a different tune?
