The Supreme Court ruled against TikTok on Friday, rejecting a First Amendment challenge to the law that would ban its U.S. operations, though the app’s future remains uncertain as Donald Trump is set to take office on Monday.
“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 wrote in an unsigned “per curiam” opinion on behalf of the court. “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,” the opinion went on in rejecting the constitutional challenge.
TikTok and creators who use the popular social media app raised First Amendment arguments against the Protecting Americans from Foreign Adversary Controlled Applications Act. The federal law would ban TikTok in the U.S. if its Chinese parent company, ByteDance, doesn’t sell the app by Sunday, the day before Donald Trump’s presidential inauguration.
The court emphasized that it was reviewing the law’s constitutionality specifically as to the challengers in this case. “As applied to petitioners, the Act 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 court wrote.
Justices Sonia Sotomayor and Neil Gorsuch added concurring opinions, with Gorsuch writing that the question in the case “is not the law’s wisdom, only its constitutionality.” He questioned whether the law would achieve its goal, noting that “[a] determined foreign adversary may just seek to replace one lost surveillance application with another.”
Though not a party to the case, Trump himself weighed in to urge the justices to consider blocking the Jan. 19 divestment deadline so that his incoming administration can pursue a “political resolution” to the dispute. Trump’s impending return to the White House on Monday adds uncertainty to the situation, including questions of whether his administration would seek to enforce any ban.
And NBC News reported ahead of the Supreme Court ruling that the Biden administration did not plan to fine companies that allow access to TikTok in the U.S. if the ban went into effect on Sunday. “The administration has decided to defer implementation of the law banning TikTok in the U.S. to the incoming Trump administration, the officials said, effectively not enforcing it during the final 36 hours of President Joe Biden’s term,” NBC News reported, citing administration officials. The White House confirmed that position after the ruling on Friday, stating, in part, “Given the sheer fact of timing, this Administration recognizes that actions to implement the law simply must fall to the next Administration, which takes office on Monday.” Last week’s oral arguments suggested that the justices were leaning toward ruling against TikTok. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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