The Supreme Court on Friday upheld a law mandating the social media giant TikTok sell its U.S. subsidiary or face a ban in the United States, setting the stage for the app potentially to be banned as early as this weekend.
The unanimous unsigned opinion found that Congress had legitimate concerns about the Chinese government’s ability to access user data that justified the law’s effective ban of the app. The law did not violate the First Amendment, the justices said, despite a challenge from TikTok and the app’s users arguing that it violated their free-speech rights.
“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 decision said. “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 Supreme Court heard oral arguments in the case on an emergency basis last week.
The law mandates that unless TikTok’s owner, China-based ByteDance Ltd., executes a “qualified divestiture” by Jan. 19, U.S. providers must stop offering the app for download and no longer provide updates. The law includes a provision allowing the president to extend the deadline by 90 days.
President Joe Biden has not executed that extension. But the Associated Press, citing a U.S. official, reported that Biden won’t enforce a ban on TikTok that is set to take effect Sunday, one day before he leaves office.
President-elect Donald Trump has signaled he may take a different approach, and the app’s CEO, Shou Chew, will reportedly attend the Trump inauguration ceremonies on Monday.
Although Trump attempted to ban the app through executive action in his first term, he filed an amicus brief in the Supreme Court case arguing for the justices to “stay” the effect of the law until he takes office.
The brief argued that Trump should be allowed to make a “negotiated resolution” to the national security concerns sparked by the app, notwithstanding the federal law mandating the app’s ban or sale.
In a concurring opinion, Justice Neil M. Gorsuch criticized the government’s argument that the Chinese government could coerce ByteDance to influence content on the app.
“One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’” Gorsuch wrote.
Gorsuch wrote, however, that the U.S. government had justified concerns that the Chinese government could use ByteDance to gain troves of data on Americans and potentially use it against U.S. interests in the future. That was separate, he said, from free-speech concerns about the law targeting the app.
“Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another,” Gorsuch said.
In a separate opinion, Justice Sonia Sotomayor criticized the majority for questioning whether the law implicated free-speech issues.
Congress passed the law last year following years of negotiations between the Biden and Trump administrations about national security concerns tied to the company.
During Supreme Court oral arguments last week, TikTok’s counsel said the company could not feasibly execute any sale in that timeframe and the app would effectively “go dark” after Jan. 19.
Over the course of litigation about the ban, the Biden administration said in court filings it did not have any evidence that the Chinese government had interfered with TikTok’s operations in the United States.
TikTok’s attorneys argued that the national security claims were overblown and could not sustain a law that amounted to shutting down a major social media platform and infringing the free-speech rights of millions of users.
The U.S. Court of Appeals for the D.C. Circuit upheld the law, finding that Congress’ national security concerns were sufficiently justified to ban the app, despite any free-speech issues it may cause.
Experts said the case could shape Congress’ ability to regulate social media companies in the future, depending on the Supreme Court’s ruling.
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