A TikTok backer streaming outside the Supreme Court on January 10.Michael Brochstein/Zuma
The Supreme Court on Friday allowed a ban on TikTok to take effect. Last year, President Joe Biden signed a law that would ban the platform unless its Chinese parent-company, ByteDance, sold it. In handing down its ruling, the court rebuffed an effort by the platform, some of its users, numerous free-speech advocates, and President-elect Donald Trump to halt the ban from taking effect.
The case pitted Congress’ national security concerns against the free speech rights of TikTok and its users. The court released an unsigned majority opinion, along with two separate concurring opinions but no dissents.
The majority held the ban passes constitutional muster because any potential free speech implications would be overridden by serious threats to national security. “There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the court held. “But 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.” It concluded that the law does “not violate petitioners’ First Amendment rights.”
The court took the case on an expedited basis, with just nine days between last week’s oral arguments and the deadline for the ban to take effect. As a result, the justices stressed their decision is narrow and declined to reach significant questions such as whether the First Amendment was indeed implicated and, if so, how much.
In spring 2024, Congress passed the law requiring ByteDance to sell US-based TikTok, or else the platform would go dark. TikTok sued to halt it, as did several content creators. The federal government has warned that ByteDance’s ownership puts the Chinese government in a position to use the app to spy on Americans by vacuuming up their personal data, and that it could enable China to manipulate the algorithm to further geopolitical goals.
The court found TikTok’s data collection activities to be a significant national security concern that alone justified the law. But Justice Sonia Sotomayor, in a concurring opinion, stressed that social media algorithms, as the court recently held in a separate case, are a form of protected speech. “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform,” she wrote.
Along with TikTok and some users, Trump mounted his own campaign to keep the platform online, asking the justices to halt the law until after his inauguration, on the premise that he alone could broker a deal to preserve the app while alleviating the government’s national security concerns. This was not exactly a legal request, but more of a request for an extralegal action.
The court’s decision to let the law take effect does not preclude Trump from trying to negotiate a sale of TikTok that would allow the platform to remain online, including by brokering a deal involving a political supporter. Trump is also reportedly mulling an executive action to halt the law—although legally, that is unlikely to succeed because presidents cannot overturn laws by fiat.
During his first term, Trump sought to ban TikTok, but he made an about-face, apparently after determining that the app—and his newfound vocal support for it—would help his 2024 presidential campaign. While the sell-or-ban law was passed on a bipartisan basis, a number of Republicans have recently followed Trump’s lead in walking back support for the measure. Democrats, too, have begun to change course. Senate Minority Leader Chuck Schumer (D-N.Y.) said yesterday that he would work with the new administration to find a solution, and the Biden administration announced that it would defer implementation to the next president. It seems that without bipartisan support, there is little political will to implement what Congress said it needed—and what the Supreme Court just green-lighted.
Whatever happens, the platform’s future is no longer in the court’s hands, but back in the realm of politics.
