The appeals court ruled today that PAFACA did not violate TikTok's free speech rights.
“The government does not remove content or require a certain mix of content. Indeed, the content of the platform could in principle remain unchanged after the divestment, and citizens of the United States would remain free to read and share as much PRC propaganda (or other content) as they wish on TikTok or any other platform of their choice. ” Ginsburg wrote in the majority opinion.
“Congress found it necessary to assume this risk given the grave national security threats it perceived. And because the record shows that Congress's decision was thoughtful, consistent with long-standing regulatory practice, and lacking an institutional goal to suppress particular messages or ideas, we are unable to discount it said the concurring opinion of Justice Sri Srinivasan. .
The U.S. Department of Justice and TikTok previously requested that an expedited decision be issued by today. Since the law is upheld, the TikTok ban could go into effect a day before Trump's inauguration next month.
In reality, the app will probably survive for a few more months. A 90-day extension of the deadline remains on the table for the Biden administration, which would leave the issue in Trump's hands. What is more certain is that ByteDance would appeal the court's decision today and then take it to the Supreme Court, which is expected to take up the case and issue its decision later next year.
Friday's decision will not surprise those who have followed the case. During oral arguments before the Court of Appeals in September, the justices appeared to have already accepted the idea that the app posed a valid national security concern for the United States. The open question was whether a ban was an excessive correction that caused greater relative harm to free speech. The justices today declared definitively that the answer to that question was no.
“Courts tend to grant wide latitude to the executive branch on national security issues,” says Dewardric McNeal, a former Defense Department official and current managing director of the Washington-based consulting firm Longview Global. Even if Congress can theoretically repeal PAFACA, it will be difficult for Trump to convince it to do so because “a large majority of people on Capitol Hill supported this law,” McNeal says.
In order to save TikTok, Trump could use the powers of the executive branch to his advantage. “While you can't completely ignore the law, you can decide how much you want to focus on pursuing the law and how aggressively you want to enforce the law,” McNeal says.
Alan Rozenshtein, associate professor of law at the University of Minnesota Law School, told WIRED earlier that the PAFACA law is written so that the US president can decide whether TikTok is “no longer controlled by a foreign adversary”. This exclusion could create a legal pathway for the Trump administration to allow TikTok to continue operating in the United States.
An alternative scenario that would allow Trump to avoid sparking controversy with his Republican allies in Congress would be to negotiate a deal to sell TikTok to an American investor. At least two major offers to buy the app have already been made, including from Steven Mnuchin, the former US Treasury Secretary, and Frank McCourt, a US real estate investor.
Updated 6/12/24 at 12:11 p.m. ET: This story has been updated with comment from TikTok.
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