Last week, the US Court of Appeals for the DC Circuit upheld the TikTok divest-or-ban bill against a constitutional challenge. The result was unsurprising given how poorly TikTok fared at September’s oral argument. The decision itself contains many intriguing legal insights at the nexus of national security and free speech. This post examines the court’s First Amendment analysis and explains why, despite the loss, the popular but problematic platform is unlikely to be shut down.

The court found this was one of the rare statutes to survive strict scrutiny, a stringent test that requires the US government to prove the law serves a compelling government interest and is narrowly tailored to achieve that interest. Judicial deference was key to its holding. The judges deferred to the government’s conclusion that Chinese control of TikTok poses a national security threat to the United States, despite the government’s admission that it lacked evidence that China specifically manipulates US TikTok content. The court leaned heavily on other evidence of intelligence-gathering and content manipulation operations by the Chinese government, and ruled that the government could infer from these actions that the Chinese Communist Party would eventually do the same with TikTok: “The Government ‘need not wait for a risk to materialize’ before acting.”

Deference also influenced the court’s narrow tailoring analysis. TikTok argued that it sufficiently mitigated these risks by sequestering US TikTok data on American-based Oracle servers. But the court deferred to the Biden administration’s conclusion that these efforts were insufficient and “that measures short of divestment would not adequately protect against the risks to national security posed by the PRC’s potential control of the TikTok platform.” With regard to this issue, the judges would not “substitute their judgments for those of the political branches on questions of national security.”

Importantly, the court distinguished between the risk of “covert content manipulation” by China and concerns that TikTok could spread propaganda or misinformation. The First Amendment generally prohibits the government from controlling the flow of ideas to the public on social media platforms. But the court explained that the divestiture-or-ban law did not target specific messages: “Were a divestiture to occur, TikTok Inc.’s new owners could circulate the same mix of content as before without running afoul of the Act.” Rather, Congress sought only to prevent the Chinese government from controlling the TikTok algorithm. Because the act is “limited to foreign adversary control of a substantial medium of communication and include[s] a divestiture exemption,” Congress “addressed precisely the harms it seeks to counter and only those harms.”

I might quibble with parts of the First Amendment analysis. The court paid little attention to the 170 million US TikTok users whose speech interests are threatened by a ban, saying only that they “will need to find alternative media of communication.” Typically, courts do not allow the government to shut down a newspaper because speakers can instead print handbills. I was also surprised that a decision endorsing speech restrictions on national security grounds never cited the Supreme Court’s seminal decision on this issue, the Pentagon Papers case. I still think a blanket TikTok ban is likely unconstitutional, but I’m not crying any tears over this result. By positioning this as primarily a divestiture law, the court framed the key concern as Chinese control of the app, not the app itself, which sidestepped thornier First Amendment issues raised by a straight ban.

For similar reasons, I do not expect TikTok to disappear anytime soon. While the company is pursuing a Hail Mary Supreme Court petition, it should also step up its efforts to find a buyer. The divestiture deadline is January 19, but if negotiations are underway, the president can and should grant a 90-day extension. Even that provides a comically small amount of time in which to negotiate and close such a complex transaction. But assuming the parties are continuing in good faith, Donald Trump can informally provide additional time by declining to enforce the law while negotiations are ongoing.

Indeed, Trump will wield significant influence over TikTok’s future. To avoid a ban, TikTok must execute a “qualified divestiture,” defined as a transaction that the president determines will remove Chinese control over TikTok. The act gives the president wide discretion, requiring only that he engage in a nebulous “interagency process” when doing so. Given Trump’s repeated opposition to a TikTok ban, I expect he would tolerate a range of potential transactions allowing ByteDance to plausibly claim TikTok is no longer under the threat of control by the Chinese government—which could include unrelated trade concessions to sweeten the pot. One imagines the incoming president would relish the thought o