Supreme Court Upholds Law That Could Lead to TikTok Ban in the U.S., Leaving Resolution to Trump
The Supreme Court’s decision on TikTok casts uncertainty on President-elect Donald Trump’s ability to intervene after taking office.
WASHINGTON − On Friday, the Supreme Court unanimously affirmed a law that could practically ban TikTok in the United States this upcoming Sunday, prioritizing the government’s national security concerns over the First Amendment rights of the platform, which has around 170 million users in the country.
This ruling raises questions about whether President-elect Donald Trump will take action after he is sworn in on Monday.
During his first term, Trump attempted to impose a ban on TikTok but has recently expressed intentions to “save” the popular app, although it’s unclear how he plans to do that.
Just moments before the court announced its decision, Trump shared on social media that he had a conversation with Chinese President Xi Jinping regarding TikTok and other matters.
“I expect that we will collaboratively solve many issues, starting right away,” Trump wrote.
Following the court’s ruling, Trump stated he would determine his course of action “in the not too distant future.”
“Stay tuned!” he added.
Alan Rozenshtein, a law and technology policy expert at the University of Minnesota Law School, pointed out that Trump’s potential options don’t seem very hopeful.
“The bottom line?” Rozenshtein stated in an analysis shared on Lawfare. “There are numerous factors at play, and it’s unwise to make bold predictions, but the most probable scenario is that TikTok will cease operations on the 19th and remain unavailable for the immediate future.”
TikTok has warned that even a short-term ban would have “devastating” consequences for its ability to attract users and creators. Approximately 170 million Americans and over a billion worldwide use TikTok.
The court’s ruling came only a week after justices engaged in over two hours of intense discussion on January 10 regarding the government’s authority to force the short video platform to sever ties with its parent company, China-based ByteDance.
TikTok described this as a “massive and unprecedented limitation” of free expression.
“One of the most popular platforms for speech in America will be offline in nine days,” noted Noel Francisco, TikTok’s lawyer who previously served as solicitor general in Trump’s administration, during the discussions on January 10. “That shouldn’t happen.”
In a statement without a signature, the court acknowledged that while TikTok provides a “unique and extensive platform for expression, engagement, and community,” Congress has concluded that breaking ties is necessary due to “well-documented national security concerns.”
There were no dissenting opinions, although Justices Sonia Sotomayor and Neil Gorsuch provided their own justifications for supporting the law.
The court dismissed TikTok’s claim that the law must satisfy the strictest standards to overcome a First Amendment challenge.
The sell-or-be-banned provision serves a significant government interest that does not pertain to limiting free expression and is not overly broad, according to the court.
The justices based their decision on lawmakers’ worries about data gathering and indicated they did not need to explore whether fears surrounding content manipulation were valid, as one legitimate reason suffices.
The court also made it clear that their analysis is “narrowly focused” on the implications of the law for TikTok, due to the limited time available for the justices to review it before the looming deadline.
“It’s limited to the specific circumstances of this case,” said Darpana Sheth Nunziata, a specialist in constitutional cases related to freedom of expression.
Nonetheless, advocates for free speech expressed that the court’s ruling sets a precedent for more “repressive policies.”
Jameel Jaffer, executive director of the Knight First Amendment Institute, remarked that the court has “weakened the First Amendment and significantly increased the government’s ability to limit speech under the guise of national security.”
The Department of Justice maintained that the restriction does not target speech, but rather limits a foreign adversary’s control over a widely utilized communication medium. The government contended that if TikTok is not sold, China could access data on Americans or influence the content on TikTok to sway public opinion in the U.S.
“The Chinese government’s sway over TikTok poses a serious threat to national security,” Solicitor General Elizabeth Prelogar argued in court last week.
She advised that before Trump intervenes, he should review updated national security information from his prior term.
In the court’s ruling on Friday, they referenced Trump’s earlier efforts to dissociate TikTok from ByteDance during his presidency.
Despite his previous concerns, the “Art of the Deal” president-elect had urged the Supreme Court to suspend the ban to facilitate negotiations for a resolution.
Upon taking office, Trump could instruct his attorney general to refrain from enforcing the law. However, it remains uncertain if Apple, Google, and other platforms for the app will find that sufficient to avoid the law’s severe penalties.
Pam Bondi, Trump’s nominee for attorney general, hesitated during her confirmation hearing on Wednesday to commit to enforcing the law.
Bondi remarked that she would generally defend U.S. laws against constitutional challenges but refrained from making any specific promises regarding the TikTok ban.
Trump might seek to exploit ambiguities in the law concerning whether he can assert that TikTok is no longer under Chinese control.
There are also uncertainties about whether he can prolong the deadline for TikTok’s separation from ByteDance.
When questioned about this during the Supreme Court discussions, Prelogar labeled it a “statutory interpretation question.”
She also mentioned that TikTok might have been testing the U.S. government’s commitment and could find a way to divest if it became clear whether the deadline would be enforced.
Francisco, TikTok’s attorney, informed the court that the platform would “go dark” on Sunday if the law is not blocked.
“Effectively, the platform will cease to operate,” he stated.
However, the law does not compel TikTok to take any action directly. The penalties apply to app stores and companies like Oracle that host TikTok’s content in the U.S. Changes by those entities may gradually make the platform less accessible but won’t necessarily prevent users who already have the app from accessing it immediately.
Deputy Attorney General Lisa Monaco indicated on Friday that enforcing the law “will unfold over time.”
Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School, commented that the only certain way for Trump to halt the ban is to collaborate with Congress to nullify it, which seems improbable.
“More realistically, this allows Trump a platform to criticize the previous administration, the Supreme Court, and others he might blame for TikTok’s potential ban,” Hurwitz added. “That political dynamic will be intriguing to follow in the approaching months.”
Trump’s shift in stance regarding TikTok may be linked to the platform’s role in connecting him with younger voters. His account had amassed 14.8 million followers as of last week.
“TikTok is an excellent platform that many Americans enjoy, and it proved valuable for his campaign in conveying his message,” stated Rep. Mike Waltz, Trump’s incoming national security advisor, during an interview with Fox News on Thursday.
Trump has also had positive remarks about TikTok after a meeting last year with billionaire Jeff Yass, a significant conservative donor with connections to ByteDance.
Trump has invited TikTok’s CEO to his inauguration ceremony.
On Friday, TikTok CEO Shou Chew expressed gratitude to Trump “for his dedication to collaborating with us to find a solution that ensures TikTok remains accessible in the U.S.”
“We appreciate and are delighted to have the backing of a president who genuinely comprehends our platform,” Chew remarked, “one who has utilized TikTok to share his personal thoughts and perspectives, amassing over 60 billion views of his content.”