The TikTok Ban Is a Dumpster Fire

On Sunday, Jan. 19, the U.S. TikTok ban went into effect—sort of. TikTok users breathed a hesitant sigh of relief later that night as the app came back online after a brief outage. Although the initial response was somewhat muted when Congress passed a law banning the app months ago, the political landscape has since shifted dramatically. As the deadline for the ban, TikTok’s legal appeals, and the Biden administration approached their conclusion at once, lingering concerns gave way to a full-blown panic.

This process has been an unprecedented and chaotic mess, both legally and politically. Although the app is back online in the States, many TikTok users and creators are concerned about the platform’s future and perhaps confused about what happened last week. In that spirit, let’s try to unpack the tangled web that is the U.S. TikTok Ban.

How we got here

The first real attempts to ban TikTok (not counting Mark Zuckerberg’s covert anti-TikTok PR campaign) came from President Trump during the final year of his first term. In August 2020, he signed an executive order banning the app, explicitly citing concerns both about the security of Americans’ data and the potential for China to use the app to spread misinformation. A federal judge subsequently blocked the order, which President Biden eventually revoked.

Several more attempts were made at the state and federal levels to ban TikTok, though these either failed to pass following public backlash or were deemed unconstitutional on appeal.

The current TikTok ban, the Protecting Americans from Foreign Adversary Controlled Applications Act, was passed after being added to House Resolution 815, which included 19 other bills, including the Ukraine aid bill. This bill specifically targeted TikTok and its parent company, ByteDance, by name. The new law gave TikTok 270 days from the day it was signed to completely divest its U.S. operations, which would then have to operate as a separate company with no relationship to the rest of TikTok outside the States.

As I previously discussed in greater depth, there were numerous problems with this law, most notably that this would infringe upon the free speech rights of millions of Americans. Even during the height of the Cold War, the Supreme Court affirmed in Lamont v. Postmaster General that even if a publication was distributing blatant propaganda, Americans still had the right to receive that propaganda if they wanted.

Fear of Chinese propaganda was not only a recurring point in the text of many of these early bans, but continues to be a central talking point for politicians who support the ban—though this may not be the whole picture. In a much more ominous take, Senator Mitt Romney suggested in May that TikTok users’ support of Palestinians was the compelling interest that gained the ban support in Congress. Other lawmakers, like Representatives Mike Gallagher and Raja Krishnamoorthi, echoed this sentiment.

It doesn’t take a First Amendment scholar to know that a law aimed at controlling the political speech of U.S. citizens does not pass constitutional muster. Any attempt to ban speech based on its content requires courts to apply strict scrutiny, which is usually a death sentence for any law. The federal TikTok ban attempts to get around this by simply targeting the app by name without explaining why it’s being banned.

Which is unconstitutional for a completely different reason.

A law that punishes a specific person or group is known as a bill of attainder or an ex post facto law. These are prohibited in Article 1 of the Constitution. For example, Congress couldn’t pass a “Tina Fey is a Russian spy” act and send the actress to prison. Even if it were true, you can’t just pass a law handing out punishment. You’d have to charge her with a crime and allow her due process in court.

The federal TikTok ban simply asserts that the app threatens national security and, therefore, must be sold or banned. TikTok was never accused of a crime. Congress simply punished it. Naturally, TikTok challenged the constitutionality of the law.

A baffling legal take

While everyone assumed that this law would go to the Supreme Court, its first stop was the Court of Appeals for the D.C. Circuit. As previously mentioned, the biggest question in any law banning speech is the standard of review that the courts apply. If a law targets the content of the speech itself, the court must apply strict scrutiny, which basically means the law automatically fails.

The court declined to determine the standard of scrutiny.

This was a bizarre move for any First Amendment case, and the court’s decision to go in this direction was based on incredibly poor reasoning. The D.C. Circuit Court decided it didn’t have to make a call because even if the ban was subjected to strict scrutiny, it was sure the law would pass. It’s hard to express what a bonkers take this is. As any first-year law student can tell you, the number of U.S. laws that have ever passed strict scrutiny at the Supreme Court can be numbered on one hand, and the TikTok ban was nowhere near that cut and dry.

Essentially, the court argued that not only did the government have a compelling interest in passing the law (we’ll come back to that one), but that the law was the least restrictive measure that could remedy the issue.

A total ban was the least restrictive remedy.

Unsurprisingly, this argument fell apart when oral arguments began before the Supreme Court, but the audacity. The most charitable reading I can give this ruling is that the court knew that the Supreme Court would do its own thing, so it might as well just phone it in. They phoned in 27 pages, but they still phoned it in.

The Supreme Court took up the case but did not follow the usual procedures. Rather than adding it to the docket and pausing the enforcement of the law until a full hearing could be held, the court scheduled an emergency hearing right before the law went into effect. Because someone on the court apparently loves drama.

A game of chicken with Congress

The most important thing to understand about the TikTok ban is that, according to people involved in the process, no one in Congress wants to ban TikTok. They want TikTok to sell.

Not only do the bill’s architects not want the blame for an actual ban taking effect, but it’s unclear how many lawmakers fully supported the bill in the first place. Although proponents of the bill are eager to point out that the ban passed with bipartisan support, this is blatantly disingenuous. A massive military and humanitarian aid bill passed with bipartisan support passed, and the TikTok ban was unceremoniously tacked on at the last minute.

The TikTok ban is unpopular among Americans on both sides of the aisle. Banning the app will not only hurt small businesses that rely on it to connect with customers, but will completely cut off TikTok creators and sellers from their primary source of income—to say nothing of the thousands of TikTok employees living in the United States.

It’s a bad look for democratic institutions to pass a law of dubious constitutionality for the purpose of intimidation, especially one they don’t plan to enforce. But those in Congress were pretty open about their intentions. In her infamous “tic-tac-toe” speech, Nancy Pelosi explicitly stated that the point of the law was not to ban TikTok. “This is not an attempt to ban TikTok. It’s an attempt to make TikTok better.” And by better, she meant making it an American-owned business.

Unfortunately for Congress, TikTok picked up on this rather obvious scheme and called their bluff. During oral arguments before the Supreme Court, TikTok CEO Shou Zi Chew stated that if the law went into effect, TikTok would “go dark” in America. It’s noteworthy that shutting down the app in this manner was above and beyond the requirements of the ban, which simply required app stores to remove TikTok in the United States—a consequence that might not directly impact U.S. TikTok users for weeks or months until they missed enough app updates that they could no longer use the service.

The idea of TikTok going dark and blaming Congress seemed to rattle some lawmakers who had, up to this point, remained mostly silent on the issue. Three days after Chew’s remarks, Sen. Ed Markey introduced a bill to extend the deadline for the TikTok ban by an additional 270 days.

During his remarks on the Senate floor, Sen. Markey pointed out that attaching the ban at the last minute to a must-pass foreign aid bill was unconventional and gave no opportunity for debate or consideration of alternatives. He also noted the potential economic harm that could result from a ban.

Congressman Ro Khanna also objected to the imminent ban, writing an online petition to tell Congress not to ban the app. Along with Senators Markey and Rand Paul, he also submitted an amicus brief to the Supreme Court, urging them to reverse the D.C. Circuit Court’s ruling.

On the other side of the aisle, during her confirmation hearing for the position of Attorney General, President Trump’s pick Pam Bondi declined to say whether she would enforce the TikTok ban.

Finally, at around 11:30 p.m. on Wednesday, Jan. 15, the Biden administration issued a statement assuring Americans that the app wouldn’t be banned on Sunday. Of course, there were no details on how this would work, so it really just boiled down to “Trust me, bro.”

Spoiler: It did not.

The Supreme Court upholds the TikTok ban

On Friday, Jan. 17, the Supreme Court upheld the D.C. Circuit’s ruling in a 9–0 vote, though there are a lot of important nuances between the two rulings. First, the Supreme Court rejected the idea that the law was narrowly tailored so that it would pass strict scrutiny. Justice Samuel Alito even reiterated that almost no law ever passes strict scrutiny (I hope the D.C. Circuit was listening). The court pointed out that the government could require a disclaimer on the app, rather than a ban, which would be more in line with how other online apps are regulated.

Second, the Supreme Court pushed back on many of the government’s claims that the lower court had simply accepted. For example, the court blasted Solicitor General Elizabeth Prelogar for the claim that China was “covertly” manipulating users. Justice Elena Kagan noted that all social media recommendation algorithms are equally unknowable to users and that “everybody now knows that China is behind [the TikTok algorithm].”

While the Supreme Court took a much closer and more critical look at many parts of the case, there were also some glaring omissions. One important point is that the Supreme Court only agreed to hear the case based on potential First Amendment issues, not as to whether it was a bill of attainder. As Alan Morrison, an associate dean at George Washington University Law School, points out, the latter claim had a much stronger case, so the fact that the court explicitly chose not to touch that issue stands out.

It’s also worth noting while some on the court, like Justice Amy Coney Barrett, seemed to have a decent grasp of the technical issues, many on the court seemed to lack digital media literacy. This was most clearly displayed when Justice Sonia Sotomayor seemed shocked that TikTok had access to users’ contacts … just like every other app on their phone.

In the end, the court determined that the data collection issues were not content based and that intermediate scrutiny applied, which meant that the law was subject to fewer constitutional requirements. It found the claims of secret national security concerns compelling, despite Justice John Roberts voicing concern over this secret evidence during oral arguments. Also, because TikTok had the option to sell to avoid being banned, it was a reasonable way to address the issue under the more lax requirements of intermediate scrutiny.

While I can definitely understand the logic behind the Supreme Court’s decision based on the evidence it considered, it clearly decided to pick and choose how to approach that evidence. Besides limiting itself to just the question of First Amendment rights, it chose to take a very literal approach to the law when such a reading supported a ban, but considered points in greater context when it didn’t.

For example, it decided that restricting how China could potentially manipulate content was not technically content in and of itself—ignoring the fact that clear concerns over content like propaganda have been present and perhaps more central to the government’s concerns throughout the case.

On the other hand, it determined that, as a Chinese company, TikTok does not receive First Amendment rights—despite the fact that technically, TikTok is an American company incorporated in Delaware and headquartered in Los Angeles and Singapore. Additionally, TikTok already migrated all the data of its American users from Alibaba Cloud servers in Singapore to Oracle servers in the U.S. This would seem to refute a lot of the government’s accusations on its own, but the whereabouts of Americans’ actual data was apparently less relevant than the location of the company that owns the holding company that in turn owns TikTok.

From the perspective of legal precedent, this is nowhere near as irresponsible as the flawed logic of the D.C. Circuit’s ruling, but this kind of cherry-picking of facts could easily bypass Americans’ First Amendment rights in other situations too.

Another issue in this case is the extreme deference to the government’s claims of national security concerns. While such deference is customary, it is not automatic (again, ignoring context when it’s convenient). Thus far, there is no evidence that user data has been turned over to the Chinese Communist Party, nor that it has interfered in any way with how TikTok interacts with its American users.

While we, of course, don’t have access to the secret intelligence information presented to Congress, some, like Congresswoman Alexandria Ocasio-Cortez, have stated that they found the information less than compelling and that none of it was substantive. The Supreme Court could have asked to see that information in a closed meeting, but it chose to give Congress the benefit of the doubt, which I don’t think was warranted in this situation.

While this marks the end of TikTok’s legal journey, we’re not left with much closure. There are still a lot of legal questions left unanswered, and some new ones have been raised. For example, in August 2024, the Third Circuit Court of Appeals ruled that TikTok was not protected by Section 230 of the Communications Decency Act because the TikTok algorithm was not a neutral mechanism, but rather a form of expression by the company. In other words, algorithms are speech. Claiming that TikTok doesn’t qualify for Section 230 protections but also doesn’t qualify for First Amendment protections creates a double standard that can only be resolved by another Supreme Court case.

Last-minute scramble

Following the Supreme Court’s ruling, another flurry of political panic kicked into gear. The Biden administration had already promised that there would be no interruption to the platform. While there was a provision in the bill for a one-time 75-day extension, the wording of the bill makes it clear that such an extension can only be granted if TikTok has a credible buyer in place. And Chew stated during oral arguments that TikTok had no intention of selling.

Instead of granting the extension, President Biden pledged not to enforce the ban for 36 hours after it went into effect, which would kick the can down the road until after President Trump’s inauguration.

Oh, can the President just decide not to enforce a law that Congress has passed? Absolutely not! At least, assuming we still care about what the Constitution says. But it’s not like Congress could impeach him in 36 hours anyway, so that was the White House’s position.

Meanwhile, other plans were being hatched in the Trump camp. On Saturday, Chew posted on TikTok to inform users that he had reached a deal with President Trump to ensure that TikTok would continue operating. Chew was also invited to sit behind Trump during his inauguration, publicly showing their new alliance.

The TikTok ban goes into effect

The TikTok ban took effect on Sunday, Jan. 19th. The app was removed from Google Play and Apple App Store, and it went dark. Users in the U.S. who tried to log on were met with a message informing them that the app was unavailable due to the law. This came at the end of a full week of tear-filled goodbyes as creators and their communities bid farewell to each other for perhaps the last time.

And then, 14 hours later, the app was back online.

There is some debate over the reason the app went dark after President Biden’s pledge not to enforce the ban. Many online called it a cheap political stunt, while others pointed out that TikTok’s lawyers might have had legitimate concerns about the lack of specific protections in the White House’s statements. Of course, going dark was never required by the law in the first place, so I tend to lean more toward the political stunt camp.

What was an unambiguous political stunt was the message users were greeted with when they returned online, obsequiously thanking President Trump for saving the app. This is pretty unusual for a push notification sent to everyone on the platform, but I’m sure this very public display of gratitude went a long way toward greasing the wheels of whatever deal Trump and TikTok have in the works.

On Monday, President Trump invoked the 75-day extension. TikTok still has no buyer, but that doesn’t seem to matter to anyone. Ultimately, the Biden Administration’s attempts to bend over backward for TikTok were all for nothing, as was the very long and problematic legal battle.

Where do we go from here?

It’s hard to say what happens next because it seems largely up to the whims of the incoming Trump Administration. It’s difficult to even say where we are now. Even though the deadline has been extended, the app hasn’t returned to the app stores. Trump has said he wants to keep TikTok running. TikTok has said it won’t sell. Maybe we just stay like this forever.

On Jan. 21, Sen. Rand Paul introduced another bill to repeal the TikTok ban, once again bringing the conversation back to the First Amendment. I’m sure Mark Zuckerberg still dreams of buying TikTok to make Meta cool again, but hopefully, he’ll go back to having a normal midlife crisis and get really into making sourdough or something.

In the meantime, many TikTok users have started moving to other platforms, such as Xiǎohóngshū, an actual Chinese app that became the top downloaded app in both Google Play and the Apple App Store. This ironic and unintended consequence of their actions might have contributed to the panic in Congress when they realized that the ban wasn’t going according to plan.

This has been an emotional roller coaster for TikTok users and creators, with many people not knowing if they’d even have a way to pay their bills as of Sunday. While everyone breathed a collective sigh of relief Sunday night, things were far from certain. If we don’t get a definitive end to this legal limbo TikTok is currently in, we could be back here again on April 5.