A US federal appeals court is expected to rule by Dec 6th whether to uphold the law requiring ByteDance to divest TikTok in the US or face a nationwide ban. President-elect Donald Trump said he will not allow TikTok to be banned, but the decision is set to be made under the Biden administration, potentially leaving Trump with few options to reverse the action (at least quickly).
Reuters outlined three possibilities that could take place:
- Court upholds the law, validating the US government's position and compelling TikTok to quickly appeal the ruling to the Supreme Court or to the full District of Columbia circuit.
- Court upholds the law, but says it's unfair that the legislation expressly singles out TikTok under the Constitution's prohibition of “Bills of Attainder” — which are laws that directly impose a punishment on a specific person or entity. In that case, the court could direct the US government to follow a process to certify that TikTok is a national security threat, giving the app a lifeline or a significant delay in a ban.
- Court rules that the law is unconstitutional and violates American's free speech rights, agreeing with TikTok and ByteDance's argument, which calls the law a “radical departure from this country's tradition of championing an open Internet.” In that case, the Justice Department could also appeal to the Supreme Court or full appeals court panel.
Unless overturned, the law is set to take effect on Jan 19, 2025. However given the scenarios outlined above, where both sides have an opportunity to appeal to the Supreme Court, an extension seems likely.
Trump’s Cabinet picks are deeply divided over banning TikTok.
Pro TikTok:
- Tulsi Gabbard, a former Democratic Rep., Trump's pick for director of national intelligence, over 1 million TikTok followers.
- Robert F. Kennedy Jr., Trump’s choice for health and human services secretary, over 3 million followers.
- Mehmet Oz, ie: Dr. Oz, Trump's pick to direct the Centers for Medicare and Medicaid Services, 1.1 million TikTok followers.
- Vivek Ramaswamy, former Republican candidate for President, Trump said will work alongside Elon Musk in a newly created government efficiency advisory roles, 855,000 TikTok followers. Ramaswamy flip-flopped on TikTok, previously calling it “digital fentanyl.”
- Elon Musk, doesn't have a TikTok profile, but opposes a ban. He posted in April, “In my opinion, TikTok should not be banned in the USA, even though such a ban may benefit the X platform.”
Against TikTok:
- Michael Waltz, Republican Representative, Trump's incoming national security adviser. Previously said that Biden's campaign should be “ashamed” for joining TikTok after issuing the law.
- Marco Rubio, Republican Senator, has been advocating against TikTok since the company first merged with Musical.ly in 2019. Called the legislation a “huge step toward confronting Beijing's malign influence.”
- Kristi Noem, South Dakota Governor, Trump's choice for interior secretary, banned TikTok from state-owned devices.
- Doug Burgum, North Dakota Governor, Trump's pick for interior secretary, also banned TikTok from state-owned devices.
- Lori Chavez-DeRemer, Oregon Representative, Trump’s pick for labor secretary, voted in favor of the bill.
- Elise Stefanik, New York Representative, Trump's choice for ambassador to the United Nations, voted in favor of the bill.
- Dr. Janette Nesheiwat, Trump's choice for surgeon general, advocated for a ban on not just TikTok, but on all social media for children.
On The Fence:
- Doug Collins, former Georgia Representative, Trump's pick for veteran affairs secretary, opposed TikTok's Chinese ownership, but said that the legislative path to ban it was a “tough decision” that created a path to government overreach.