The Supreme Court ruled that the law that could oust TikTok from the US unless Chinese parent company ByteDance sells it is constitutional as applied to the company.
“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 a per curiam ruling, which is not attributed to any particular justice. “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 ruling means that TikTok is still on track to be banned in the US on January 19th, unless President Joe Biden extends the deadline or ByteDance manages to sell the company in time. The Biden administration now appears poised to hold off on enforcement and leave it to the next administration once President-elect Donald Trump is sworn in on Monday — though even that promise might not be enough to overcome the risk service providers like Apple, Google, and Oracle could face if they choose not to comply with the law by continuing to service TikTok once the ban technically takes effect.
Trump has said he’d try to save the app, though it’s not clear how — and he won’t be sworn into office until a day after the sale deadline. The app won’t just disappear from users’ phones; TikTok has reportedly planned to go beyond the law’s requirements and go dark should the ban be upheld.
The justices caution that their ruling should be “understood to be narrowly focused” given that the case involves “new technologies with transformative capabilities.” They emphasized that even though it’s common for companies to collect data, “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. A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.” Ultimately, the government “had good reason to single out TikTok for special treatment.”
The justices found that the law as applied to TikTok is “content neutral” and “justified by a content neutral rationale,” citing the government’s concern over the alleged potential for China to collect vast amounts of data on Americans through the app. They found that the law does not need to satisfy the highest possible form of First Amendment scrutiny and that, as applied to TikTok, it does satisfy intermediate scrutiny because the law furthers “an important Government interest unrelated to the suppression of free expression” and doesn’t burden much more speech than necessary to accomplish that.
The court was not swayed by TikTok’s assurances that the Chinese government was “unlikely” to “compel TikTok to turn over user data for intelligence-gathering purposes, since China has more effective and efficient means of obtaining relevant information.” The justices said that even if China had not already sought to use ByteDance’s relationship with TikTok to access US data, TikTok didn’t offer any good reason for the court to conclude that the US government’s determination that China might seek to exploit that relationship “is not at least a ‘reasonable inferenc[e] based on substantial evidence.’” In the end, the justices afforded a great deal of deference to the government’s assessments, noting, for example, “We are especially wary of parsing Congress’s motives on this record with regard to an Act passed with striking bipartisan support.”
There are some buyers waiting in the wings for this ruling, hoping it will change ByteDance’s calculus on a sale. Billionaire Frank McCourt’s Project Liberty, for example, wants to buy the app without the algorithm to run on its own social network protocol. But it’s still not clear if China would allow a sale, even without the coveted algorithm — perhaps betting that the US will eventually relent or that it can continue to thrive in other countries around the world. Still, reports this week indicate that might be starting to change, as unnamed sources told several outlets that Chinese officials were mulling the idea of getting billionaire Elon Musk to act either as a buyer or broker of a potential deal.
The case pitted free expression and national security concerns against each other. The justices heard oral arguments in the case last Friday, where lawyers for TikTok and a group of creators on the platform described why they believe the law would violate the First Amendment. The US government defended the law, which was passed overwhelmingly by Congress and signed by Biden, as important to national security.
Justices Sonia Sotomayor and Neil Gorsuch offered their own statements, concurring in the final judgment. Sotomayor disagreed that the court need not determine that the law implicates the First Amendment because she thinks it’s obvious it does. Even so, she agrees that the law can survive such scrutiny.
Gorsuch points out the unusual speed of the case, writing that, “We have had a fortnight to resolve, finally and on the merits, a major First Amendment dispute affecting more than 170 million Americans.” He writes that he’s “pleased” the court did not consider the classified evidence presented to Congress to justify the law in this case, writing that, “Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.”
Gorsuch also says he has “serious reservations” about whether the law is actually content neutral, though he finds the government’s interest compelling and the law appropriately tailored to meet its goals. Whether it will actually do so is another matter, he points out. “A determined foreign adversary may just seek to replace one lost surveillance application with another. As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear,” Gorsuch writes. “But the question we face today is not the law’s wisdom, only its constitutionality. Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional.”