Earlier today, the D.C. Circuit Court of Appeals issued a decision upholding the TikTok divest-or-ban law, more formally known as the Protecting Americans From Foreign Adversary Controlled Applications Act (PAFACAA). That means on January 19, Apple and Google will be required to remove TikTok from their app stores, unless a sale happens (causing an internal scramble as the giants confront their roles as enforcers of the law).

Though President-elect Donald Trump has expressed interest in “saving” the app from a ban, he has no power to stop the law from going into effect. Apple and Google, which could face fines in the hundreds of billions of dollars if they don’t remove TikTok from their app stores, are expected to comply with the law.

In a statement, TikTok spokesperson Mike Hughes said: “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. Unfortunately, the TikTok ban was conceived and pushed through based upon inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people. The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on January 19th, 2025.”

Below are some passages from the ruling that reveal why the court dismissed TikTok’s claims that the government’s law violates freedom of speech — and what that means for TikTok now.

The court suggested that some restrictions on U.S. speech may actually in the end make speech freer, because it could save people from secret manipulation of speech by foreign governments. Nodding to the role that social media companies play in shaping our systems of discourse, they wrote:

“At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. When a government — domestic or foreign — stifles speech on account of its message . . . [it] contravenes this essential right and may manipulate the public debate through coercion rather than persuasion.”

This is a new idea, one that acknowledges the extent to which private companies (and the governments that influence them) control our digital information ecosystem. The court continued:

“[T]he First Amendment exists to protect free speech in the United States. Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.”

The court decided that TikTok, and the creators who sued to stop the ban, had real speech arguments — ones important enough to trigger what the courts call “heightened scrutiny” under the First Amendment. When a court determines that heightened scrutiny applies to a claim, it raises the bar for what the government must show to refute it. To survive heightened scrutiny, laws cannot discriminate based on the viewpoint or content of someone’s speech. Lamakers could not, for example, have banned TikTok because they believed it privileged pro-Palestine speech over pro-Israel speech, or even pro-China speech over pro-United States speech. To survive heightened scrutiny, laws also have to be narrowly tailored to solve the problem the government is trying to solve.

When laws trigger heightened scrutiny, they are far less likely to survive on appeal because the bar is raised to make sure they don’t impinge on freedom of speech. But in this instance, the court ruled that the government’s reasons for passing the law were compelling enough, and that the law itself was narrow enough, to outweigh TikTok’s and the creators’ concerns. They found that the law was viewpoint- and content-neutral, because it focused on who owns a platform, rather than what the platform says.

“The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well substantiated national security threat posed by the PRC. Under these circumstances, the provisions of the Act that are before us withstand the most searching review.”

Both TikTok and the government pointed to years of negotiation between them as evidence to support their side of the case. TikTok created an initiative known as Project Texas, which would restrict data flows between the U.S. and China, and limit ByteDance’s oversight of TikTok’s U.S. operations. It then proposed that project in a draft National Security Agreement to the Biden Administration.

TikTok argued that Project Texas was meticulous and robust, and that the government should’ve accepted it as a way to solve its national security concerns without resorting to a full ban. But the government argued that the yearslong negotiation just showed just why TikTok’s plan was insufficient. Here, the court deferred heavily to the government:

“For us to conclude the proposed [National Security Agreement] is an equally or almost equally effective but less restrictive alternative, we would have to reject the Government’s risk assessment and override its ultimate judgment. That would be wholly inappropriate after Executive Branch officials conducted dozens of meetings, considered scores of drafts of proposed mitigation terms, and engaged with TikTok as well as Oracle for more than two years in an effort to work out an acceptable agreement. Here respect for the Government’s conclusions is appropriate.”

It also said that, at the end of the day, the government just believed it couldn’t trust ByteDance:

“At bottom, acceptance of the Final Proposed NSA would ultimately have relied on the Executive Branch trusting ByteDance to comply with the agreement, which the Government understandably judged it could not do.”

In its conclusion, the court acknowledged that its decision would have “significant implications for TikTok and its users.” But it urged those users not to blame the U.S. government for the loss of their favorite social media app. Assuming no divestment happens before January 19, the court said:

“TikTok’s millions of users will need to find alternative media of communication. That burden is attributable to the PRC’s hybrid commercial threat to U.S. national security, not to the U.S. Government, which engaged with TikTok through a multi-year process in an effort to find an alternative solution.”

TikTok will likely argue that it should be allowed to stay online while it appeals this case to the Supreme Court. That, ultimately, will be a decision for the Supreme Court to make — but the D.C. Circuit today suggested that the courts would not allow the app to keep functioning during appeal. Unless TikTok sells by January 19, or gets an extension from President Biden, it “will be unavailable in the United States, at least for a time,” the court wrote. But it suggested that even if it went offline, the app would be eligible to come back under the control of a new owner.

“270 days is a substantial amount of time. If TikTok (or any company subject to the Act) is unable to divest within 270 days, it can do so later and thereby lift the prohibitions.”