The Supreme Court has upheld the constitutionality of a law that mandates the divestiture of TikTok from its Chinese parent company, ByteDance, unless a sale occurs by a specified deadline. The court acknowledged TikTok’s significance as a platform for expression and community for over 170 million Americans but underscored Congress’s determination to address national security concerns stemming from TikTok’s data collection practices and ties to a foreign adversary. This ruling places TikTok on a trajectory toward a potential ban in the US, although the incoming Biden administration may choose to postpone enforcement, leaving the final decision to the Trump administration. The court’s decision highlights the complex interplay between national security and free speech in the digital age.
The justices emphasized the narrow scope of their ruling, acknowledging the transformative nature of new technologies like TikTok. While recognizing the common practice of data collection by companies, the court differentiated TikTok due to its scale, potential susceptibility to foreign influence, and the vast amount of sensitive data it collects. This unique combination, the court argued, justifies the government’s targeted approach to address national security concerns. The government, according to the court, had compelling reasons to treat TikTok differently from other platforms. The ruling affirms the government’s authority to implement measures to protect national security, even when those measures impact popular platforms for expression.
The court deemed the law content-neutral, driven by national security concerns rather than suppression of free speech. The government’s rationale centered on the potential for China to leverage TikTok for data collection on American citizens. The justices applied intermediate scrutiny, a less rigorous standard of judicial review, concluding that the law advances an important governmental interest unrelated to free speech suppression and does not unduly burden expression beyond what is necessary to achieve that interest. TikTok’s assurances regarding the unlikelihood of Chinese government coercion were insufficient to sway the court, which deferred to the government’s assessment of the potential risks.
The court’s decision acknowledges the substantial bipartisan support for the law and exhibits deference to Congress’s judgment on matters of national security. Potential buyers, including Frank McCourt’s Project Liberty, are observing the situation, hoping for a shift in ByteDance’s stance on a sale. However, the willingness of China to permit a sale, even without the core algorithm, remains uncertain. Reports suggest that Chinese officials are considering involving Elon Musk as a potential buyer or broker, adding another layer of complexity to the ongoing saga.
The case underscores the tension between safeguarding free expression and protecting national security. During oral arguments, TikTok’s legal team and content creators argued that the law infringed upon First Amendment rights. The government, however, defended the law’s necessity for national security. Justices Sotomayor and Gorsuch offered concurring opinions, with Sotomayor asserting that the law undeniably implicates the First Amendment but can withstand scrutiny. Gorsuch expressed reservations about the law’s content neutrality while acknowledging the government’s compelling interest and tailored approach.
Gorsuch also highlighted the expedited nature of the proceedings and the inherent constitutional concerns surrounding the introduction of classified evidence in judicial review. He recognized the potential for evolving threats and the possibility of alternative solutions arising in the future. While acknowledging the limitations imposed by the compressed timeframe, Gorsuch concluded that the perceived threat appears genuine and the government’s response does not violate the Constitution. The Supreme Court’s decision sets the stage for a complex and potentially protracted resolution, with the future of TikTok in the US hanging in the balance.
