OPINION ANALYSIS

Supreme Court upholds TikTok ban

This article was updated on Jan. 17 at 12:45 p.m.

The Supreme Court on Wednesday unanimously upheld a federal law that will require TikTok to shut down in the United States unless its Chinese parent company can sell off the U.S. company by Jan. 19. In an unsigned opinion, the justices acknowledged that, “for more than 170 million Americans,” the social media giant “offers a distinct and expansive outlet for expression, means of engagement, and source of community.” But, the court concluded, “Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”

At oral arguments on Jan. 10, TikTok’s lawyer, Noel Francisco, told the justices that TikTok would “go dark” in the United States if the company did not prevail in its challenge to the law. However, in a statement issued shortly after the ruling, White House press secretary Karine Jean-Pierre indicated that with the law set to go into effect just one day before President-elect Donald Trump takes office, the Biden administration “recognizes that actions to implement the law simply must fall to the” Trump administration.

Trump, who supported a ban during his first term in office but now opposes shutting down TikTok, had urged the justices to delay the ban’s effective date to give his administration a change to “pursue a negotiated resolution” when it took office on Jan. 20. TikTok’s CEO Shou Chew plans to attend Trump’s inauguration on Monday and has been invited to sit in a section reserved for dignitaries and important guests. 

The law at the center of the case is the Protecting Americans from Foreign Controlled Applications. Passed in 2024 to address national security concerns, the law bars the use of apps controlled by “foreign adversaries” of the United States, including China. More specifically, the law defines apps controlled by foreign adversaries to include any app run by TikTok or ByteDance. The law makes it illegal for U.S. companies to provide services to distribute, maintain, or update TikTok unless the app’s Chinese parent company sells it. This means, as ABC News reported on Thursday, that app stores and internet hosting services would be exposed to liability if they continued to provide services to TikTok after Jan. 19.

TikTok, ByteDance, and a group of TikTok users went to federal court in Washington, D.C., where they argued that the law violates the First Amendment. The U.S. Court of Appeals for the District of Columbia Circuit disagreed. Senior Judge Douglas Ginsburg explained that the law was “carefully crafted to deal only with control by a foreign adversary” and “part of a broader effort to counter a well-substantiated national security threat posed by the People’s Republic of China.”

Just over a month before the law was scheduled to go into effect, the Supreme Court agreed to take up the case and fast-track it, hearing oral arguments on Jan. 10.

In a 19-page unsigned opinion, the court began by stressing the extent to which the challenge to the TikTok law involves “new technologies with transformative capabilities” – which, in turn, the court said, “counsels caution on our part.” The court’s analysis in its opinion, the opinion warned, “must be understood to be narrowly focused in light of these circumstances.”

The court assumed for the sake of argument that the provisions of the law at issue implicate First Amendment interests. But even if that is true, the court reasoned, they are not subject to the most stringent test, known as strict scrutiny, to determine whether they are constitutional. The court acknowledged that laws that single out specific speakers for restrictions are often subject to strict scrutiny. But strict scrutiny is not warranted, the court continued, when the differential treatment is justified by special features of the speaker – for example, as here, “a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million users.” However, although that special treatment may be justified here, the court warned, a “law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.”

The provisions of the TikTok law, the court explained, are instead subject to a less rigorous test, known as intermediate scrutiny, which requires courts to look at whether the provisions of the law advance an important government interest that is not related to the suppression of free expression and do not restrict substantially more speech than is necessary to do so.

The TikTok provisions satisfy that test, the court concluded. There is no dispute, the court wrote, that the government “has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users.”

And although TikTok contends that it is “unlikely” that China would require the company to turn over its users’ data, the court explained, “the Government’s TikTok-related data collection concerns do not exist in isolation. The record reflects that China ‘has engaged in extensive and years-long efforts to accumulate structured datasets, in particular on U.S. persons, to support its intelligence and counterintelligence operations.”

Moreover, the court continued, the law is “sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U.S. persons who use TikTok.” The ban on control by a foreign adversary, the court said, “account for the fact that,” unless TikTok is sold, “TikTok’s very operation in the United States implicates the Government’s data collection concerns, while the requirements that make a divestiture ‘qualified’ ensure that those concerns are addressed before TikTok resumes U.S. operations.”

The other options that TikTok and its creators offered as alternators to a TikTok ban – such as disclosure requirements and restrictions on data sharing – do not change this conclusion, the court stressed. Courts should generally give the government “latitude” in situations like these, the court wrote. And in particular, whether the provisions of the law are constitutional should not hinge “on whether we agree with the Government’s conclusion that its chosen regulatory path is best or ‘most appropriate.’”

Justice Sonia Sotomayor wrote a brief opinion concurring in part and concurring in the judgment. She stressed that she saw “no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does.”

In a five-page opinion concurring only in the judgment, Justice Neil Gorsuch – perhaps the most skeptical of the law at oral argument last week – emphasized that the court was correct in not “endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’” to justify the TikTok ban. “One man’s ‘covert content manipulation,’” he observed, “is another’s ‘editorial discretion.’”

Gorsuch also suggested that the law should have been subjected to strict scrutiny, rather than intermediate scrutiny, but he indicated that it may not have ultimately made a difference in the outcome. He deemed himself “persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans.”

The law, he concluded, “also appears appropriately tailored to the problem it seeks to address.” He acknowledged that the “remedy Congress and the President chose” – shutting down TikTok if its Chinese parent does not sell it – “is dramatic.” “But before seeking to impose that remedy,” he noted, Congress and the executive branch “spent years in negotiations with TikTok exploring alternatives and ultimately found them wanting. And from what I can glean from the record,” Gorsuch wrote, “that judgment was well founded.”

Gorsuch observed that the case had moved through the Supreme Court quickly, and he indicated that he did not have “the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional.”

This article was originally published at Howe on the Court.