Supreme Court unanimously upholds law that effectively bans TikTok on Sunday

“[T]he challenged provisions are facially content neutral and are justified by a content-neutral rationale," the court held.

The U.S. Supreme Court upheld the constitutionality of the law that effectively bans TikTok beginning on Sunday, unanimously rejecting the First Amendment challenges brought by TikTok itself and creators who use the platform.

In a 20-page, unsigned opinion, the court based its decision largely on the government’s asserted concerns about the platform’s vast collection of data being available to the Chinese government.

Coming just one week after the court held arguments on the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act as applied to TikTok, the turnaround was quick but essentially required by the coming January 19 date when the law’s restrictions against TikTok go into effect.

Although the law does not technically ban TikTok — instead requiring divestiture of TikTok by the Chinese parent company, ByteDance, or a face a ban on services necessary to maintain the application in the U.S. — even the Supreme Court opinion does not write around the law’s obvious purpose and effects in upholding the law, calling it at one point “an effective ban on a social media platform with 170 million U.S. users.”

Now, the questions are what President Joe Biden and his administration will do in the coming days, what Donald Trump will do come Monday, and what TikTok itself will do come Sunday.

In short, this is one instance in which the Supreme Court’s decision is — in practical terms — almost certainly not final.

---

The opinion largely tracked the arguments, with some elements directly echoing comments made by Chief Justice John Roberts on January 10. If I had to bet, I’d say he at least took responsibility for drafting it.

Here is what I wrote of arguments:

It was, however, at a more fundamental level where TikTok and the creators ultimately faced their most difficult time on Friday. Several justices, with no strong ideological divide, expressed finding it hard to see the law as a regulation on speech at all, let alone a regulation on American speech.

It’s “regulation of corporate structure,” Roberts said, and through to Francisco’s rebuttal at a little past 12:30 p.m., neither he nor Fisher appeared to come up with an answer to that that would be convincing to a majority of the justices.

Here is how the court addressed that issue:

Even in addressing the lesser standard of whether the law “impose[s] a disproportionate burden” upon the First Amendment activities of TikTok and the creators, the opinion suggested that less protection would likely be provided here than past precedent would suggest because “a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny.“

Nonetheless, the court “assume[d] without deciding” that the TikTok ban “fall[s] within this category and are subject to First Amendment scrutiny.” Whenever a court does that, they’re going to uphold the law. Essentially, it is saying, “Even if we give them this, they don’t win.”

And that is what the court did, holding that “the challenged provisions are facially content neutral and are justified by a content-neutral rationale.”

How did the court conclude that when assessing a law that addressed TikTok and ByteDance by name?

“The prohibitions, TikTok-specific designation, and divestiture requirement regulate TikTok based on a content-neutral data collection interest,” the opinion stated. “And TikTok has special characteristics—a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U.S. users—that justify this differential treatment.“

Applying intermediate scrutiny to the law then, the court held that the law easily passed this bar, first concluding that the goal of preventing China from obtaining the data available via TikTok “qualifies as an important Government interest under intermediate scrutiny“ and then that the law’s divestiture-or-shutdown requirement is “sufficiently tailored” to that goal.

Ultimately, the court did not truly address the government’s other asserted rationale for the law — preventing China from covertly controlling the content available on TikTok — which TikTok and the creators argued ”taint” the law as an impermissible content-based regulation.

Instead, the court simply held, “The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.”

With that, and despite the fact that, as the opinion stated, “for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,“ the court concluded that “the challenged provisions do not violate petitioners’ First Amendment rights.”

Although no justices dissented, Justice Sonia Sotomayor and Neil Gorsuch wrote separately.

Sotomayor joined much of the court’s opinion but wrote that she believed that “our precedent leaves no doubt“ that the law should be subject to First Amendment scrutiny. In other words, she didn’t join the section “assum[ing] without deciding” whether the First Amendment applies. It does, she wrote. Despite that minor disagreement, she joined the rest of the court’s opinion and concluded, “I agree that the Act survives petitioners’ First Amendment challenge.”

Gorsuch did not join the court’s opinion, instead “sketch[ing] out” a few “tentative” thoughts given the “fortnight” the court had “to resolve, finally and on the merits, a major First Amendment dispute affecting more than 170 million Americans.” Gorsuch strongly opposed the government’s content-manipulation argument, writing, “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’” and also “harbor[ing] serious reservations about whether the law before us is ‘content neutral’ and thus escapes ‘strict scrutiny.’”

Gorsuch also wrote that he was “pleased” the court didn’t consider the classified evidence the government submitted to the U.S. Court of Appeals to the D.C. Circuit “but shielded from petitioners and their counsel.” Having raised this matter at arguments, Gorsuch wrote that “we have no business considering the government’s secret evidence here.”

Despite all of that, Gorsuch wrote that he found the data collection interest is compelling, which would satisfy even strict scrutiny, and that “the law before us also appears appropriately tailored to the problem it seeks to address.” As such, he, too, agreed with the court’s ultimate decision to uphold the law against TikTok’s challenge.