A unanimous Supreme Court has ruled in favor in Congress after TikTok appealed a federal court decision that upheld federal law potentially banning TikTok in the United States due to national security concerns. Congress sought the ban unless TikTok’s parent company sold the U.S. version of TikTok.
“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 said in an unsigned per curiam decision. “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. For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights.”
For now, the law is expected to go into effect on Jan. 19, 2025, unless President Joe Biden tries to extend the ban’s deadline. President-Elect Donald Trump also has indicated he may try to extend the deadline for the TikTok ban.
Link: Read the Opinion
The Supreme Court considered the First Amendment arguments made by TikTok and concluded they fell under the category of intermediate scrutiny, a less rigorous free speech standard than sought by TikTok.
TikTok claimed the law was subject to the most severe constitutional free speech test, called “strict scrutiny.” Under strict scrutiny, the burden is on the government to prove it has a compelling interest in limiting a constitutional protection such as freedom of speech or press, and it is using a narrowly tailored means via the law to achieve those interests. The government also must prove it is using the least restrictive means possible.
“The Act satisfies intermediate scrutiny. The challenged provisions further an important Government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest,” the Court determined. “On this understanding, we cannot accept petitioners’ call for strict scrutiny. No more than intermediate scrutiny is in order.”
The Supreme Court heard two and a half hours of arguments on Jan. 10, 2025 in TikTok v. Garland (24-1113). The justices considered if the Protecting Americans From Foreign Adversary Controlled Applications Act violated the First Amendment.
During oral arguments, several justices questioned if TikTok’s First Amendment’s concerns were strong enough to surmount the national security concerns expressed by Congress. Chief Justice John Roberts told TikTok’s attorneys that the Court could not ignore that the company was “subject to doing intelligence work for the Chinese government.” Justice Brett Kavanaugh echoed Roberts’ comments in his questioning during arguments.
In April 2024, Congress passed the law, which required ByteDance Ltd., to divest its ownership in the U.S. version of TikTok. On Dec. 6, 2024, the U.S. Court of Appeals for the D.C. Circuit upheld the law. TikTok then appealed to the Supreme Court. In a per curiam order issued on Dec. 13, 2024, the D.C. Court of Appeals also denied TikTok’s request to delay the ban that was due to go into effect on Jan. 19, 2025.
The act was included in an aid package signed by President Joe Biden on April 24, 2024, making it “unlawful for an entity to distribute, maintain, or update . . . a foreign adversary controlled application.” TikTok Inc. and ByteDance Ltd. are listed as “foreign adversary controlled applications” because of their association with China.
On May 7, 2024, TikTok Inc. and ByteDance Ltd., filed a petition in the District of Columbia Circuit appeals court against Attorney General Merrick Garland. Among the various items listed in TikTok Inc.’s petition were several core First Amendment questions.
In the D.C. Court of Appeals ruling, the three judge-panel agreed that national security concerns addressed by Congress outweighed any First Amendment arguments. The appeals court also found the act satisfied the First Amendment’s strict scrutiny test.
Scott Bomboy is the editor in chief of the National Constitution Center.
