An appeals court ruled today that PAFACA does not violate TikTok’s free speech rights.
“The government does not suppress content or require a specific mix of content. Indeed, content on the platform could remain essentially unchanged after divestment, and U.S. residents would be free to read and share as much PRC propaganda (or any other content) as they want on TikTok or another platform of their choice,” Ginsburg wrote in the majority opinion.
“Congress found it necessary to assume this risk given the serious national security threats it perceived. And because the record shows that Congress’s decision was thoughtful, consistent with long-standing regulatory practice, and devoid of an institutional purpose to suppress particular messages or ideas, we cannot set it aside,” Justice Sri Srinivasan said in a concurring opinion.
Both the U.S. Department of Justice and TikTok had previously requested an expedited ruling today. As the law is followed, the TikTok ban could go into effect as early as the day before Trump’s inauguration next month.
In fact, the app will likely last for a few more months. The Biden administration is considering extending the deadline by 90 days, which would leave the matter in Trump’s hands. What is more certain is that ByteDance will appeal against the court’s judgment today and will then refer the case to the Supreme Court, which is expected to consider the case and issue a ruling next year.
Friday’s verdict will not come as a surprise to those watching the case. During oral arguments before the Court of Appeals in September, it seemed that the justices had already accepted the view that the app posed a legitimate threat to U.S. national security. The remaining open question was whether the ban was an overcorrection that caused a more relative harm to free speech. Today, the judges definitively said the answer to that question is “no.”
“Courts tend to give the executive branch a lot of discretion on national security issues,” says Dewardric McNeal, a former Defense Department official and current managing director of Longview Global, a Washington-based consulting firm. While Congress could theoretically repeal PAFACA, it will be difficult for Trump to convince him to do so because “the expansive majority of people on Capitol Hill support this bill,” McNeal says.
To save TikTok, Trump could use executive branch powers to his advantage. “While you can’t completely disregard the law, you can decide how much you want to focus on enforcing it and how aggressively you want to enforce it,” McNeal says.
Alan Rozenshtein, a law professor at the University of Minnesota Law School, previously told WIRED that the PAFACA Act was written so the US president could decide whether TikTok was “no longer controlled by a foreign adversary.” This carve out could create a legal path for the Trump administration to allow TikTok to continue operating in the US.
An alternative scenario that would allow Trump to avoid controversy with his Republican allies in Congress would be to broker a deal to sell TikTok to an American investor. There have already been at least two significant offers to buy the app, including one from Steven Mnuchin, former US Treasury Secretary, and Frank McCourt, an American real estate investor.
Updated 12/24/2012 12:11 ET: This story has been updated with a comment from TikTok.