In our blog, we have previously explored in detail the dispute between TikTok and the U.S. regarding the platform’s potential ban. In December, the Court of Appeals for the D.C. Circuit upheld the law that forces TikTok’s Chinese parent company, ByteDance, to divest its ownership of the popular social media app or face a U.S. ban. The court rejected TikTok’s constitutional challenges under the First and Fifth Amendments, a decision that could have lasting effects on free speech rights, the regulation of foreign-owned companies, and the government’s ability to act unilaterally on national security grounds. By deferring to Congress and the executive branch’s assessment of security risks, the court signaled its willingness to support broad government authority in matters involving foreign-controlled platforms.

The government has argued for years that TikTok poses unique national security risks. Officials claim that the app’s Chinese ownership allows the Chinese government to compel ByteDance to provide access to U.S. user data or influence TikTok’s algorithm to shape public discourse. While TikTok introduced “Project Texas,” a plan to segment U.S. data and limit foreign access, the court sided with the government’s position that no internal mitigation strategy could fully address the risk. The judges emphasized that it was not their role to question Congress or the executive branch’s decision to prioritize divestiture as a solution. This position echoes a long-standing judicial reluctance to second-guess government claims related to national security, a stance that critics argue limits the court’s ability to meaningfully review government actions.

A central issue in the case was whether the TikTok divest-or-ban law violated the First Amendment. TikTok argued that banning the app would suppress speech for both the company and its users, given TikTok’s role as a major platform for communication. The court acknowledged that the law implicated First Amendment concerns but ultimately ruled that these concerns were outweighed by national security interests. The judges framed the issue as a question of foreign influence rather than direct government censorship, reasoning that the law did not target speech or content but instead focused on TikTok’s foreign ownership. This distinction allowed the court to conclude that the law “vindicates” First Amendment principles by curbing the influence of a foreign adversary on a U.S.-based communications platform.

This reasoning has drawn criticism from civil liberties advocates. The American Civil Liberties Union (ACLU) warned that the court’s approach could be used to justify bans on other platforms, particularly those operated by companies with ties to foreign governments. Critics also argue that the court’s logic appears self-contradictory. Mike Masnick, founder of Techdirt, described the ruling as an “inversion” of First Amendment values, noting that the Amendment traditionally limits government control over speech rather than enabling it. By this view, the government is not merely limiting the influence of a foreign state but is also exerting control over the structure and operation of a major communications platform.

Another legal argument raised by TikTok was that the law violates the Fifth Amendment’s prohibition on bills of attainder, which prevent Congress from singling out specific individuals or entities for punishment. TikTok argued that the law’s explicit naming of the company was evidence of punitive intent. The court rejected this claim, finding that Congress was justified in naming TikTok to address a specific and urgent security concern. The judges concluded that singling out TikTok was not punitive but rather an efficient way to respond to a documented threat. Critics of this approach, however, caution that it sets a concerning precedent. Mary Anne Franks, a law professor at George Washington University, noted that the bill of attainder clause is designed to prevent Congress from targeting specific companies or individuals without due process. She argued that allowing Congress to justify this treatment under the guise of national security could erode the principle that legislation should apply broadly, not target individual actors.

The court also rejected TikTok’s argument that the forced divestiture amounted to an unconstitutional taking of private property without just compensation under the Fifth Amendment. TikTok claimed that requiring ByteDance to sell its stake in the company deprived it of control over its own property. The judges, however, held that TikTok was not being “deprived” of its property because it could still profit from a sale, noting that other buyers could acquire the app. The court dismissed TikTok’s argument that China’s refusal to allow ByteDance to sell TikTok made divestiture impossible, stating that the Chinese government’s position was not relevant to the U.S. government’s constitutional obligations. By this logic, any difficulties ByteDance faced in finding a buyer were framed as business challenges rather than legal violations. TikTok argued that “Project Texas” (which involved storing U.S. data within the country and subjecting it to U.S. oversight) addressed the government’s national security concerns without requiring a sale. The court rejected this argument, holding that Congress and the executive branch were entitled to conclude that such measures were insufficient. The judges emphasized that extensive deliberations had already taken place between TikTok, Oracle (its data partner), and the government, and that the executive branch had determined divestiture was the only effective solution. According to the court, it was “wholly inappropriate” to second-guess that determination, as national security judgments lie within the special competence of the political branches.

This deference to the political branches mirrors past decisions where courts declined to scrutinize executive claims of national security. Critics argue that such deference can undermine judicial oversight, particularly when executive power intersects with fundamental rights like free speech and property rights. Allowing the government to designate certain companies as national security threats (and then use that designation to demand divestiture) could give the executive branch extraordinary leverage over foreign firms operating in the U.S. While Congress could theoretically impose similar obligations on U.S.-owned companies, such actions would face stricter constitutional scrutiny.

TikTok has stated its intention to appeal the ruling to the Supreme Court, and it agreed to hear TikTok’s challenge but legal scholars are skeptical about its chances. Gautam Hans, a professor at Cornell Law School, noted that the D.C. Circuit’s opinion was unanimous and bipartisan, which reduces the likelihood of Supreme Court intervention. The high court tends to avoid cases that lack a clear split among lower courts, and it has a history of deference to national security claims. Unless TikTok can present a compelling argument that the ruling raises broader constitutional questions, it is unlikely to gain traction at the Supreme Court.

As the January 19, 2025, deadline for divestiture approaches, the pressure on TikTok and its parent company, ByteDance, continues to mount. Former President Donald Trump, who is set to return to office as president-elect, has promised to “save” TikTok, but his strategy remains unclear. His past comments suggest he may seek to prevent American tech monopolies from filling the space left by TikTok, but he has provided few details on how he would achieve this goal. One option would be to instruct the Department of Justice to deprioritize enforcement of the divestiture order, though such a move could invite legal challenges. Another option would be to assist in brokering a sale of TikTok to a U.S. company, but this would require the cooperation of the Chinese government, which has placed restrictions on ByteDance’s ability to sell the platform.

The ruling against TikTok raises larger questions about the role of government oversight in the technology sector. The U.S. has long criticized other countries for banning social media platforms on national security grounds, especially when those platforms are linked to dissent or minority viewpoints. By using similar logic to justify a potential TikTok ban, the U.S. risks adopting the same measures it has condemned abroad. This shift could also prompt foreign governments to impose new restrictions on U.S.-owned platforms like Facebook, Google, and X (formerly Twitter), arguing that they, too, pose security risks.

Ultimately, the D.C. Circuit’s decision establishes a significant precedent for the treatment of foreign-owned platforms. It affirms Congress’s ability to directly target specific companies in legislation and reinforces the executive branch’s authority to act on national security concerns with minimal judicial oversight. The ruling also clarifies that corporate mitigation efforts, no matter how extensive, may not be sufficient if the executive branch deems them inadequate. For TikTok, this decision represents a major setback, but for U.S. constitutional law, it marks a shift in how courts approach the balance between free speech, property rights, and national security. As this case continues toward the Supreme Court, the broader legal questions surrounding government power and corporate accountability will remain unresolved.

János Tamás Papp, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary and a research expert at the National Media and Infocommunications Authority of Hungary. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University where he has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses.