16. TikTok Loses in the U.S.; Trump Says He’ll Save TikTok—Can He Be Trusted? | A Look at the Hearing and the Ruling
Summary
TikTok lost outright before the U.S. Court of Appeals for the D.C. Circuit, which unanimously upheld the constitutionality of Congress’s “sell or be banned” law. TikTok must complete a divestiture by January 19, 2025, or Apple, Google, Oracle and other app-distribution and internet-hosting providers could face a $5,000 fine for every U.S. user; based on 170M users, the theoretical penalty could reach $850B—“more than TikTok’s entire global valuation.”
The decisive change was not new evidence discovered by the U.S. government, but the upgrade of the ban from a presidential executive order to legislation specifically enacted by Congress. In 2020, Trump issued an executive order under IEEPA, but a court halted it with a temporary restraining order because presidential authority could not override protections for speech platforms; the Biden team learned from that failure, had Congress pass a new law directly, and routed the TikTok case past the district court to the D.C. Circuit in pursuit of “pass it quickly, implement it quickly.”
The court acknowledged that the law severely restricts TikTok’s speech rights, but still placed potential national-security risks above the First Amendment. The ruling accepted the government’s two core risks: China could unlawfully obtain U.S. user data and could use TikTok to “influence the minds of American users”; even without proof that such manipulation had already occurred, the court held that national-security cases warrant deference to the preventive judgments of Congress and the executive branch.
TikTok’s greatest political value may also be the risk that most concerns the U.S. government: the platform has become an independent information gateway outside the mainstream media. TikTok has more than 170M U.S. users, and roughly one-third of Americans aged 25 to 35 rely on TikTok alone for news; while Facebook and other platforms have been overwhelmingly pro-Israel on the Israel-Palestine issue, TikTok still carries substantial pro-Palestinian voices. Yet both sides tacitly avoided the issue in court, leaving TikTok without a full airing of this free-speech argument.
Trump’s promise to “save TikTok” is more likely about preserving the platform while forcing a change in ownership than protecting ByteDance’s ownership. He previously used maximum pressure to push a sale, much as a negotiator might first threaten 60% or 80% tariffs; TikTok’s relatively favorable treatment of him in the election gives him a reason not to let the platform disappear immediately, but not necessarily a reason to spend political capital on ByteDance. “The president has already taken the fruits of victory,” and whether he delivers still depends on the transaction’s interests and his policy priorities.
Trump theoretically has 3 options, but each is harder than a verbal promise: persuade Congress to repeal the law, have the Justice Department hold off on enforcement, or reach an acceptable sale agreement with China. The first would require a high-consensus legislative effort after a 360-vote House passage and 79-vote Senate passage; the second would leave Apple, Google and Oracle exposed to enormous tail risks of future penalties; and the third remains constrained by China’s technology-export controls and the possibility that a sale is commercially or technically unworkable.
The more important signal for investors is the court’s recognition that Congress can single out Chinese companies and impose operating restrictions on them. WuXi AppTec, BGI and DJI already face similar legislation, while Temu and Shein could come under pressure through national security, intellectual property, antidumping, tariffs or de minimis-shipment compliance; 黄敏达’s view is that “whatever your industry, the government is simply using different tools to deal with you.”
An appeal to the Supreme Court is not a guaranteed stay; it is a pair of gates that are both tightening. TikTok must first become one of roughly 100 cases selected from about 7,000 applications each year, then separately persuade the Supreme Court to issue an injunction; otherwise the litigation itself will not stop the statutory deadline of January 19, 2025, and Trump’s inauguration will not automatically change service providers’ legal exposure.
Deep dive
1. The Failure of the 2020 Executive Order Gave Rise to the 2024 TikTok Law
黄敏达 first distinguishes the two rounds of pressure. In 2020, Trump targeted TikTok and WeChat simultaneously by executive order, demanding a sale or an exit from the U.S.; TikTok was at one point reported to be considering a sale to Microsoft or Oracle, but China’s addition of social-media algorithms to its restricted technology-export list stalled the deal.
TikTok won quickly on the legal front. The emergency powers granted to the president under IEEPA contain a speech-related exception, and a federal court relied on it to issue a temporary restraining order; Biden later revoked the executive order after taking office, showing that the legal foundation for that route “was relatively weak.”
The Biden team’s lesson was straightforward: if presidential authority is limited, have Congress enact a new law directly targeting TikTok. Congress did not need to rely on an old statute to justify the executive branch’s authority; it only needed both chambers to pass the bill and the president to sign it, after which the courts could review its constitutionality.
2. The U.S. Constitution Is Brief; the Real Power Lies in Judicial Interpretation
黄敏达’s summary of the separation of powers is that Congress writes general rules, the executive branch enforces them, and the federal courts determine whether legislation and enforcement violate the Constitution. Legislative power may represent the public directly, but it remains constrained by the country’s fundamental law.
The entire U.S. Constitution runs only a few thousand words. The First Amendment’s core relevance to this case can almost be reduced to “freedom of speech.” What counts as speech, how far the government may restrict it, and what constitutes an infringement are questions the courts fill in case by case.
This creates a foundational paradox in U.S. law: many disputes are not about “who is right,” but “who gets to decide.” The program cited Justice Jackson’s famous formulation of that logic: “We are not final because we are infallible, but we are infallible only because we are final.”
3. The Political Narrative Shifted from “Poisoning Children” to Chinese Control
卫诗婕 cited Tucker Carlson’s characteristic formulation: U.S. TikTok is filled with “very boring, vulgar, and in some cases obscene videos to poison our children,” while “Chinese people are learning math on Douyin.” The comparison casts American TikTok content as harmful to children and uses the difference between content in China and the U.S. to heighten suspicion of the platform.
黄敏达 noted that the lawmakers and judges making these decisions probably do not use TikTok themselves. They may see only their grandchildren spending long hours on smartphones and reduce the platform to a collection of low-quality content. In Congress, 周受资 emphasized TikTok’s protections for minors and asked why drug-related content appears in the U.S. but not in Singapore.
The other narrative goes directly to control. Lawmakers repeatedly pressed 周受资 on whether he was a Communist Party member and whether he was controlled by the Chinese government, attempting to recast TikTok from a commercial platform as a Chinese propaganda tool. Its Chinese founding background, Beijing-based algorithm team and obligations under Chinese law all reinforced that impression.
4. The Law Does Not Fine TikTok Directly; It Chokes Its Infrastructure
黄敏达 said the law primarily constrains 2 categories of U.S. service providers: app-distribution channels such as Apple’s App Store and Google, and cloud-service and internet-hosting providers such as Oracle and Amazon. The pressure is deliberately placed on TikTok’s U.S. upstream and downstream partners rather than on ByteDance itself.
Halting new-user downloads alone might not destroy the platform immediately: existing users could continue using it, and users might switch to foreign-region accounts to download the app. But if Oracle or another local provider stops supplying data, security and cloud infrastructure, the software itself could become nonfunctional.
The fine is calculated at $5,000 for each U.S. user who continues to have access to TikTok. Based on 170M users, the theoretical total would reach $850B; even if TikTok were willing to absorb that exposure, there is no guarantee Apple, Google, Amazon and Oracle would collectively accept the risk.
5. DOJ Has Enforcement Discretion, but Cannot Give Providers Real Certainty
Once the law takes effect, the Justice Department controls prosecution and penalties. It is obligated to “faithfully execute the laws enacted by Congress,” but it can decide which conduct to prosecute, which conduct not to prosecute, and what enforcement posture to adopt, leaving the incoming administration some room to maneuver.
A simple promise not to fine providers does not eliminate the risk. Even if a new attorney general tells Oracle to continue servicing TikTok, the company would worry that the government could later change course and seek penalties: “How am I supposed to know you won’t start fining me one day?”
If the executive branch refuses to enforce the law for an extended period, Congress could apply pressure through resolutions, public opinion and appropriations, eventually producing a constitutional confrontation between legislative and executive power. 黄敏达 considers such an extreme conflict less likely, but sufficient to keep service providers cautious.
6. A Bill That Normally Would Die Was Pushed Through Both Chambers at Extraordinary Speed
Roughly 90% of bills introduced in Congress go nowhere. The first TikTok bill passed the House by a substantial margin but stalled after Democratic Senate leader Schumer did not actively advance it; TikTok’s lobbying at that stage could do little more than keep the bill from reaching a vote.
The second attempt returned quickly. House Speaker Mike Johnson bundled the TikTok bill with major measures providing aid to Ukraine and Israel and sent the package to the Senate; the House ultimately passed it 360-0? votes and the Senate 79 votes, while Biden chose not to veto it.
The timing of the votes was itself treated as a signal: the House convened roughly 400–500 lawmakers on a Saturday, while the Senate voted around 9 or 10 p.m. 黄敏达 inferred that “it was very clear that an enormous political force was driving this,” quite possibly Biden national-security officials including Jake Sullivan.
The law gave TikTok a grace period through January 19, 2025, for a sale and litigation. The program judged that a sale during Biden’s term was “almost impossible,” because China’s restrictions on algorithm exports created a deadlock between the U.S. sale requirement and Chinese law.
7. Congress Bypassed the District Court to Prevent Delay Through Fact-Finding
TikTok sued in May 2024, while several platform creators filed a separate action; the 2 cases were consolidated. The legislation assigned the matter directly to the D.C. Circuit, effectively asking a court that normally handles appeals to conduct the initial review.
Skipping the district court avoided extended fact-finding and other stages of litigation. Federal trial-level cases in the U.S. can last 4 years, 6 years, or even 8, 10 years, which plainly did not fit lawmakers’ objective of bringing the law into force quickly.
The D.C. Circuit is often described as the second-most important court in the U.S., with a long record of handling federal agencies and major constitutional disputes. The jurisdictional design did not mean Congress could control the judges, but it did show that lawmakers believed their drafting could withstand review by that court.
8. The 3 Lifetime Judges Had Distinct Profiles but Presented a United Front
Chief Judge Srinivasan was born in India, moved to the U.S. at age 4, graduated from Stanford and was nominated by Obama. Naomi Rao is also of Indian descent, studied at Yale and the University of Chicago Law School, and is a younger judge appointed by Trump. Their immigrant and elite-education trajectories are notably similar.
Srinivasan focused heavily on the U.S.-China confrontation during the hearing. He even asked whether, if the 2 countries went to war, China would still want to buy TikTok or NBC, and whether Congress would then be barred from prohibiting the purchase. TikTok’s counsel could only respond that the countries were not at war in reality and that the First Amendment analysis had to be based on the circumstances at hand.
Senior Judge Douglas Ginsburg dropped out of college to start a business while studying in 1965, ran an online-dating business, sold it and then returned to complete his education. 卫诗婕 had expected that technology-entrepreneur background to make him more open-minded, but he wrote no separate opinion and joined the unanimous ruling.
黄敏达 offered 2 possibilities: Ginsburg may have weighed the risks of foreign control and accepted them, or he may have believed that a 2–1 ruling and dissenting opinion would expose internal U.S. divisions. The program explicitly preserved the uncertainty: “We have no way of knowing what he really thinks deep down.”
9. The First Amendment Question Was Not Whether Regulation Was Permitted, but Whether a Ban Was the Only Option
The U.S. government can regulate speech. The court’s task is to weigh whether the expression is protected, whether the measure targets a particular viewpoint, whether the government has a compelling interest, and whether a less restrictive alternative exists.
黄敏达 used The New York Times as an analogy: even if someone used newspaper distribution to move drugs, police could not simply shut down the entire newspaper. As long as there is a way to stop the drugs while preserving the media outlet, closing the platform is neither necessary nor the only available measure.
The government’s asserted interest in the TikTok case was that China might eventually use the platform to control Americans’ minds, and that the government should not have to wait for manipulation to occur. TikTok proposed alternatives including disclosure of Chinese shareholder interests and labels identifying information sources, allowing U.S. users to make their own judgments rather than forcing a sale or shutting down the entire platform.
TikTok also offered to provide its source code for U.S. government review. The government responded that the code was extremely complex and might take 3 years to review from this point, while continuous updates would keep arriving, making ongoing scrutiny impractical. In its view, TikTok could only be sold to trusted U.S. owners or cease operating.
10. Foreign Ownership Made TikTok’s Speech Rights “More Complicated”
Existing case law establishes that the First Amendment protects U.S. citizens and U.S. companies, but not foreign corporations. ByteDance, as a Cayman Islands company, falls outside that protection, while its U.S. subsidiary TikTok Inc. still enjoys speech rights.
TikTok pointed to media organizations including Reuters and Politico that are controlled by foreign capital but operate normally in the U.S. Judge Rao’s distinction was: “Those are controlled by foreign capital, not by a foreign adversary.”
The ruling did not deny that TikTok Inc. receives First Amendment protection. Instead, it held that foreign ownership and Chinese influence made the balancing more complicated. The court cited Justice Breyer’s concurrence, which said foreign control makes the First Amendment issue “more complicated.”
黄敏达 placed the conflict in the retreat from globalization. In the past, multinational companies could comply simultaneously with Chinese, U.S. and EU law; today, compliance with one country’s law may mean violating another’s. TikTok said Chinese law barred a sale, while the U.S. government treated that very restriction as evidence of Chinese control.
11. TikTok’s Strongest Free-Speech Evidence Was the Content Difference It Barely Presented in Court
TikTok has more than 170M U.S. users, and roughly one-third of Americans aged 25 to 35 get their news only from TikTok rather than relying on newspapers, television or Facebook. 黄敏达 argued that once the user base reached 200M or 300M, the political cost of a ban would only rise.
卫诗婕 identified the Israel-Palestine issue as the clearest content example. While other mainstream platforms were overwhelmingly pro-Israel, TikTok still carried substantial pro-Palestinian voices. Searches related to China also often surface travel, scenery and cultural content that is absent from other platforms.
That both demonstrates TikTok’s value to speech diversity and explains the government’s urgency. 黄敏达 said bluntly, “Its very existence is something free speech must have”; but acknowledging that its content differs because of its Chinese shareholder could also damage TikTok’s public image as a neutral platform.
The result was the hearing’s most consequential silence: the U.S. government may fear TikTok precisely because its content is different, while TikTok did not want to make that difference its central defense. “Both sides tacitly avoided the issue.”
12. A PLO Precedent Gave the Government a Path to “Close the Institution, Not Ban the View”
Judge Rao cited the 1987 Palestinian Information Office case. The State Department designated the PLO a terrorist organization and closed its Palestinian Information Office, or PIO, in Washington; the office argued that it was also a media outlet distributing pro-Palestinian views in the U.S.
The court sided with the State Department, reasoning that it was not banning pro-Palestinian speech but closing a specific office. The same views could still be disseminated through other newspapers, broadcasters and organizations. The authority to designate a terrorist organization was also treated as a foreign-policy judgment to which courts generally defer.
Rao applied that logic to TikTok: even if the platform changed owners, creators could continue expressing the same views. TikTok responded that creators’ accumulated followers and income could not be transferred, and starting over on another platform might make their work economically unsustainable.
TikTok further argued that freedom of publishing includes an author’s right to choose a publisher. Just as the government could not prohibit an author from choosing Oxford University Press merely because it was foreign, creators should not be denied the freedom to choose TikTok as their publishing platform.
13. Murdoch and NetChoice Precedents Protect Media Owners and Algorithmic Editing
TikTok cited News America, in which Congress passed a law that was facially general but in practice affected only Murdoch-owned companies by barring an extension of their newspaper-broadcast cross-ownership exemption. The court held that legislation targeting a single media company was unconstitutional.
The analogy for TikTok was even more direct: the new law did not conceal its target, explicitly naming ByteDance and TikTok. The First Amendment logic is that the more directly the government targets a particular media company or type of speech, the more rigorous the court’s scrutiny should be.
The July 2024 NetChoice decision further confirmed that social-media recommendations, removals and downranking through algorithms are editorial conduct protected by the First Amendment, not merely passive display. Even when the editorial labor is performed by an algorithm rather than a person, the platform retains expressive rights over what users ultimately see.
TikTok therefore advanced 3 overlapping claims—as a platform, publisher and editor. It does not merely carry users’ speech; its algorithmic selection is itself protected expression. The final ruling nonetheless placed the national-security assessment above those rights.
14. From Montana to Texas, TikTok Has Faced Successive Enemies on Different Fronts
In 2020, TikTok and WeChat obtained temporary restraining orders at almost the same time; it was not a case of WeChat escaping quickly while TikTok spent years in a single lawsuit. The real difference was TikTok’s larger scale and the new rounds of attacks it later faced from state governments, Congress and different political forces.
Montana cited dozens of categories of objectionable content, including throwing feces at passersby and torturing babies, as grounds for a ban. That approach exposed the law as targeting particular expression, and a court quickly suspended its implementation. The case showed how plainly writing down which content lawmakers dislike can run directly into the First Amendment.
Texas adopted a narrower rule barring government employees from using TikTok on government devices. Public-university professors argued that they needed to display platform content in class, but the court found the restriction reasonable because it applied only to government personnel and equipment, and TikTok’s side lost.
黄敏达’s summary was that TikTok is not dealing with one long-running unresolved case, but with “a problem here today and a problem there tomorrow,” requiring constant firefighting. Its scale, growth rate and influence over news mean that opposition will not disappear after a single legal win.
15. Trump’s Position Has Changed, but the Goal of Forcing a Sale May Not Have
黄敏达 judged that Trump does not want TikTok shut down outright, but may not support continued ownership by ByteDance. YouTube and Twitter previously banned Trump’s account, while traditional media were largely unfriendly to him from 2020 through 2022; TikTok, by contrast, provided a relatively favorable distribution environment during this election.
Trump has not posted much since opening his TikTok account, but the program observed that Biden might have published roughly 100 pieces of content and still accumulated fewer total likes than a single Trump post. Winning with help from the platform’s supporters and then shutting it down immediately would make for poor political optics.
The 2020 executive order can nevertheless be reinterpreted as a sale negotiation: apply maximum pressure first, then extend the deadline and designate a buyer. 黄敏达 compared it with trade talks in which a negotiator first threatens 60% or 80% tariffs before settling at a lower level—“say ‘ban’ first, then ultimately reach a sale.”
The more practical question is who would buy such a large platform and which interest group would take control; the value at stake is enormous. Trump may not want TikTok shut down under Biden or sold to a buyer endorsed by Biden, but that does not mean he is willing to protect ByteDance unconditionally.
16. “Saving TikTok” Has 3 Routes, and Each Requires Real Political Capital
The most thorough option would be for the new Republican-controlled Congress to pass a law repealing or amending the existing one. The old law won 360 votes in the House and 79 in the Senate, and many of those lawmakers will remain in office; the political payoff from rebuilding a majority for one Chinese company is unclear.
The second option is to let the law take effect while having the Justice Department refrain from enforcement. That may be possible within its prosecutorial discretion, but it cannot eliminate service providers’ potential liability and could invite sustained pressure from Congress through resolutions, appropriations and public opinion.
The third option is for Trump to offer China a deal it cannot refuse and facilitate a sale. The program explicitly labeled this as “thinking outside the box”: the commercial, technical, Chinese-export-control and buyer questions all remain unresolved, and whether Beijing and Washington could accept the same structure is completely unknown.
黄敏达’s key reservation is that TikTok is not among the highest-priority items on Trump’s “100 things to do after taking office.” Education and immigration rank higher. “The president has already taken the fruits of victory,” and he may simply posture before shifting responsibility for the ban to the Democrats or the so-called deep state.
17. The Ruling Put National Security Above Rights Analysis and Opened a Wider Door to Named Sanctions
The December 6, 2024 ruling largely matched 黄敏达’s pre-hearing forecast. The 3 judges acknowledged that “sell or be banned” severely restricts TikTok’s speech rights, but unanimously held the law constitutional and valid. The reasoning centered on the same 2 risks—data exposure and influence over Americans’ minds—and the legal analysis was “quite political.”
The court accepted the government’s framing of “divestiture rather than a ban” and barely addressed whether commercial realities, technology constraints and Chinese law made a sale impossible in practice. It compared TikTok with sensitive sectors such as broadcasting and civil aviation, where foreign investment is restricted, and held that creators could continue speaking after a change in ownership.
TikTok had previously proposed a national-security agreement, Oracle’s “Project Texas,” U.S.-based data storage and source-code review, but the court found none sufficient. 黄敏达’s conclusion was that in national-security cases, courts remain inclined to defer to Congress and the executive branch rather than require the government to prove that the risk has already materialized.
TikTok also challenged Congress’s decision to single it out under equal-protection and bill-of-attainder theories, but the court rejected those claims as well. The result confirms that Congress can name specific companies in legislation and restrict their operations, meaning WuXi AppTec, BGI, DJI and other Chinese companies could face more “named-target” legislation.
18. The Supreme Court Remains an Option, but the Countdown Will Not Automatically Stop
The D.C. Circuit is ordinarily the endpoint of federal litigation at the appellate level; TikTok can only ask the Supreme Court to grant discretionary review. The Supreme Court receives roughly 7,000 applications each year and selects about 100, and major public impact does not guarantee merits review.
Even if the Supreme Court accepts the case, the January 19, 2025 deadline will continue to run. TikTok must separately show that the law presents sufficiently serious issues and seek an injunction suspending enforcement, creating 2 independent thresholds: certiorari and an injunction.
A TikTok spokesperson has said the company will appeal immediately, but 黄敏达’s conclusion remains restrained: the legal path still exists, while the practical challenge is “difficult on top of difficult.” As the courts, Congress, the Justice Department and Trump weigh their respective options, U.S. service providers at minimum have to assess risk under the law currently in force.