SCOTUS Upholds TikTok Ban: First Amendment Analysis, Next Steps

The clock could be striking midnight on TikTok – at least from a legal perspective.

On Jan. 17, 2025, the U.S. Supreme Court upheld the decision of the U.S. Court of Appeals for the District of Columbia Circuit that the Protecting Americans from Foreign Adversary Controlled Applications Act — also known as the “TikTok ban” — does not violate the First Amendment. As a result, ByteDance, the China-based corporation that owns TikTok will have to either sell TikTok or stop operating it in the United States on Jan. 19 to avoid billions of dollars in fines.

What happens now, and how does it affect me?

The future of TikTok in the United States now rests in political hands. There are minimal paths to TikTok’s continued operation in the U.S. after Jan. 19:

• ByteDance could sell TikTok to a U.S.-based owner. However, TikTok has said that any sale would not include the site’s algorithm. That means the site might have to be rebuilt from the ground up and would perhaps not be immediately available.
• Congress can pass — and outgoing President Joe Biden would have to sign — another law that rescinds the TikTok ban. However, Sen. Tom Cotton of Arkansas has said he would prevent such a law from moving through the Senate quickly.
• Biden can grant a 90-day delay of the ban if there is considerable progress toward TikTok’s sale.
• Both Biden and President-elect Donald Trump, who takes office Jan. 20, could simply decline to enforce the law. The day of the ruling, Trump said he would make a decision on TikTok “in the not too distant future.” The Associated Press reported (based on an anonymous source) that President Biden will not enforce the ban either. If both presidents exercise their discretion not to enforce the law, TikTok could remain available to U.S.-based users, though the Google and Apple app stores could still decide they don’t want to make it available for download.

Clearly, TikTok’s continued availability in the United States is in doubt, and if you are one of the more than 170 million U.S.-based TikTok users, prepare for the platform to disappear from your phone, tablet or laptop.

How did we get here?

Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act, which President Joe Biden signed on April 24, 2024. The law requires ByteDance Ltd., the Chinese company that owns TikTok, to take one of three actions by Jan. 19, 2025:

1. Sell the app.
2. Stop making the app available in the U.S.
3. Pay a fine of $5,000 per user. This fine would also be imposed on any other company that makes TikTok available in the U.S., such as the Google and Apple app stores.

TikTok Inc., a U.S.-based corporation, sued, arguing the law violates the First Amendment protection of freedom of speech. The company was joined in its challenge of the law by eight TikTok creators and by the nonprofit BASEDPolitics, which uses social media to promote free markets and individual liberties to younger audiences.

Lawmakers claimed that the TikTok app allows ByteDance to share Americans’ personal information with the Chinese government, which could then spread anti-American propaganda in a way that threatens U.S. national security.

The U.S. Court of Appeals for the District of Columbia Circuit held that the law does not violate the First Amendment. In a ruling issued on Dec. 6, 2024, a three-judge panel of the court agreed with the government’s claims about national security and that a ban is the best way to avoid those threats.

TikTok immediately sought Supreme Court review, and the court heard the case on Jan. 10.

What did the Supreme Court say?

The court issued a “per curiam” decision, meaning no single justice is identified as the author of the case and indicating that all justices agreed. There were no dissenting opinions.

The court said that it is not clear that the law directly regulates expression of any kind. It does not actually subject TikTok’s content creators to potential punishment of any kind. As to ByteDance and TikTok, the law is merely a regulation of corporate structure, requiring ByteDance to decide whether to sell the U.S.-based subsidiary or not. The court could have stopped there and held that this isn’t even a First Amendment case at all — but it didn’t.

Instead, the court acknowledged that this may indirectly impact First Amendment-related activities like TikTok’s content moderation and its users’ ability to generate content and associate with other like-minded people. It analyzed whether this law violates the First Amendment, holding that it does not.

The court first decided that the law is “content neutral.” Again, it does impact TikTok’s and its creators’ speech in some way. But the purpose of the law isn’t to target speech and expression on TikTok based on its content and message. Instead, the court said the purpose of the law is simply to prevent China from collecting sensitive personal information from more than 170 million people in the United States. The court noted the uniqueness of this case:

“TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”

Because the law is content neutral, the government only needed to show that there is an “important” government interest for the law and that the law does not burden a substantial amount of speech to achieve that interest. The court held that the government satisfied both parts of this “intermediate scrutiny” test.

The law’s stated purpose of preventing China — a foreign adversary — from forcing ByteDance to hand over the personal data of U.S. TikTok users is sufficiently important. It is worth noting that the court relied only on publicly available information to reach this conclusion, without relying on additional classified information the government had provided to the court in confidence. The court cited publicly available reports from Congress noting that:

“TikTok’s data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content private messages sent through the application, and videos watched …

“TikTok collects user data, user content, behavioral data (including “keystroke patterns and rhythms”), and device and network data (including device contacts and calendars).”

The court also deferred to the government’s conclusion that the collection of this data presented a threat to the national security of the United States because China “has engaged in extensive and yearslong efforts to accumulate structured datasets, in particular on U.S. persons, to support its intelligence and counterintelligence operations.”

The court also held that this law directly advances Congress’ goal of protecting national security because:

• None of the alternatives TikTok suggests, including increased transparency around how TikTok and ByteDance collect and share information, restrictions on that collection and sharing, and a proposed agreement to directly share information with the U.S. government, are strong enough to protect national security. In any event, intermediate scrutiny does not require that these alternatives be used, only that the ban protects national security.
• The ban is conditional, not mandatory. ByteDance has a choice on whether or not it will sell TikTok.

The court’s decision was not surprising, given that the justices seemed ready to rule for the government during oral argument. While this decision will be a shock to many – especially TikTok users – First Amendment advocates may take heart in the fact that the court seemed to rely on the unique facts of this case and therefore might not support a similar ban – even based on national security concerns – in a case where a foreign adversary of the United States was not involved.

This article was updated Jan. 17, 2025. It will be updated with future developments.

Kevin Goldberg is a First Amendment specialist for Freedom Forum. He can be reached at [email protected].