
The US Supreme Court has upheld a federal law set to take effect Sunday that bans American companies from working with TikTok unless operation of the social media platform is severed from Chinese control.
An unsigned opinion released Friday morning produced no dissents. Justice Sonia Sotomayor rejected roughly two pages of the 20-page majority opinion, and Justice Neil Gorsuch supported the result without joining the majority opinion.
“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 main opinion concluded “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.”
“[W]e conclude that the challenged provisions do not violate petitioners’ First Amendment rights,” the opinion explained.
“[W]e are conscious that the cases before us involve new technologies with transformative capabilities. This challenging new context counsels caution on our part,” noted the majority opinion, issued one week after justices heard oral arguments in the case TikTok v. Garland. “That caution is heightened in these cases, given the expedited time allowed for our consideration. Our analysis must be understood to be narrowly focused in light of these circumstances.”
Then-President Donald Trump issued an order in 2020 calling on TikTok parent company ByteDance to divest from the social media platform’s US operations. TikTok challenged the constitutionality of the order, and the case was set aside as the company worked with the Biden administration in 2021 and 2022 to reach an agreement that would address the federal government’s national security concerns about Chinese access to users’ data. Negotiations eventually stalled. No agreement was finalized.
In 2024 Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act, set to take effect Sunday. The act “makes it unlawful for any entity to provide certain services to ‘distribute, maintain, or update’ a ‘foreign adversary controlled application’ in the United States.” The act specifically cites TikTok and ByteDance.
“[R]equiring divestiture for the purpose of preventing a foreign adversary from accessing the sensitive data of 170 million U. S. TikTok users is not ‘a subtle means of exercising a content preference,” according to the Supreme Court majority. “The prohibitions,
TikTok-specific designation, and divestiture requirement regulate TikTok based on a content-neutral data collection interest. 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.”
“While we find that differential treatment was justified here, however, we emphasize the inherent narrowness of our holding,” the opinion continued. “Data collection and analysis is a common practice in this digital age. But 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.”
The high court noted the significance of TikTok’s link to the Chinese government.
“Here, the Government’s TikTok-related data collection concerns do not exist in isolation. The record reflects that China ‘has engaged in extensive and years-long efforts to accumulate structured datasets, in particular on U. S. persons, to support its intelligence and counterintelligence operations.’ Even if China has not yet leveraged its relationship with ByteDance Ltd. to access U. S. TikTok users’ data, petition ers offer no basis for concluding that the Government’s determination that China might do so is not at least a ‘reasonable inferenc[e] based on substantial evidence,’” according to the Supreme Court majority.
Sotomayor agreed with the majority opinion, except for the court’s decision to “assume without deciding” that the act raises First Amendment issues. “[O]ur precedent leaves no doubt that it does,” she wrote.
Gorsuch used his concurring opinion to “sketch out only a few, and admittedly tentative, observations.”
“First, the Court rightly refrains from endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’ as a justification for the law before us,” he wrote. “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’ Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them.”
“Too often in recent years, the government has sought to censor disfavored speech online, as if the internet were somehow exempt from the full sweep of the First Amendment,” Gorsuch added.
“Second, I am pleased that the Court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel,” he wrote. “Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.”
“Third, I harbor serious reservations about whether the law before us is ‘content neutral’ and thus escapes ‘strict scrutiny,’” Gorsuch added. “Strict scrutiny” is a type of judicial review applied to laws that restrict constitutional rights.
“Fourth, whatever the appropriate tier of scrutiny, I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans. The record before us establishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information,” Gorsuch explained.
“Finally, the law before us also appears appropriately tailored to the problem it seeks to address. Without doubt, the remedy Congress and the President chose here is dramatic. The law may require TikTok’s parent company to divest or (effectively) shutter its U. S. operations. But before seeking to impose that remedy, the coordinate branches spent years in negotiations with TikTok exploring alternatives and ultimately found them wanting. And from what I can glean from the record, that judgment was well founded,” he added.
“Whether this law will succeed in achieving its ends, I do not know,” Gorsuch concluded. “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. But the question we face today is not the law’s wisdom, only its constitutionality.”
The post Supreme Court upholds federal TikTok ban taking effect Sunday first appeared on Carolina Journal.
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