The TikTok ban heads to the Supreme Court today. Here's what to know about the case.
The Supreme Court's Landmark Decision on TikTok
On January 17, 2025, the U.S. Supreme Court issued a per curiam decision in TikTok, Inc. v. Garland, unanimously upholding the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA). This law mandates that TikTok must be divested from its Chinese parent company, ByteDance, by January 19, 2025, or face a ban in the United States. The Court's ruling, delivered just days after oral arguments on January 10, highlights the urgent national security concerns cited by Congress.
The decision acknowledges TikTok's role as a platform for expression for over 170 million Americans but defers to legislative judgment on security threats. By affirming the D.C. Circuit Court's earlier ruling, the Supreme Court has set a significant precedent for how First Amendment rights are weighed against governmental interests in the digital age.
Understanding the Protecting Americans from Foreign Adversary Controlled Applications Act
Enacted in April 2024, PAFACA is a targeted legislative response to perceived threats from foreign adversary-controlled applications, with TikTok as its primary focus. The law prohibits the distribution of such apps in the U.S. unless they undergo a "qualified divestiture" to sever ties with adversarial ownership. For TikTok, this meant finding a new owner approved by the U.S. government within a strict 270-day window.
Congress justified PAFACA by citing risks of data collection and covert content manipulation by the People's Republic of China. The act is facially content-neutral, applying regardless of the type of content on the platform, which became a central point in the constitutional debate. Its narrow tailoring to specific national security interests was key to its survival in court.
The First Amendment Challenge and Legal Scrutiny
TikTok and its users argued that PAFACA violates the First Amendment by effectively banning a major speech platform. They contended that the law imposes a disproportionate burden on free speech, especially since divestiture was commercially infeasible within the timeframe, leading to an effective ban. The petitioners pushed for strict scrutiny, the highest level of judicial review for speech restrictions.
In contrast, the government asserted that the law is content-neutral, regulating ownership rather than speech, and thus should be subject to intermediate scrutiny. This lower standard requires the law to be narrowly tailored to serve an important governmental interest. The D.C. Circuit and later the Supreme Court adopted this view, assuming intermediate scrutiny applied.
National Security Concerns vs. Free Speech Rights
The government's case hinged on national security risks, particularly China's potential access to sensitive data from 170 million U.S. TikTok users. Evidence suggested that China has engaged in efforts to accumulate datasets on U.S. persons for intelligence purposes. While TikTok offered alternatives like "Project Texas" for data mitigation, Congress deemed them insufficient.
Critics, including legal scholars, argued that the government provided little public evidence to substantiate imminent threats or show that less restrictive measures were inadequate. This tension between security imperatives and speech protections defines the core conflict, with the Court ultimately deferring to legislative assessments of risk.
The Court's Reasoning and Unanimous Ruling
In its unsigned opinion, the Supreme Court emphasized the novel context of "new technologies with transformative capabilities," advising caution. The Court applied intermediate scrutiny, finding that PAFACA serves an important interest in preventing foreign data collection and is narrowly tailored. It noted that the law targets control by a foreign adversary, not speech content, and that divestiture addresses the root concern.
The ruling affirmed that Congress has the authority to address national security threats through such measures, even if they impact speech indirectly. The Court stated that it is not their role to second-guess the government's chosen regulatory path if it is constitutionally sound, reinforcing judicial deference in security matters.
Concurring Opinions and Judicial Nuances
Justices Sonia Sotomayor and Neil Gorsuch filed concurring opinions, adding depth to the decision. Sotomayor argued that the Court should have explicitly held that PAFACA implicates First Amendment rights, rather than assuming it for analysis. She believed this evasion could set a problematic precedent for future cases.
Gorsuch, while agreeing with the outcome, opined that strict scrutiny might have been more appropriate but found the government met even that higher standard. He highlighted the dramatic nature of the remedy but supported it based on the record of failed negotiations and substantive risks. These concurrences reflect ongoing debates about the appropriate level of scrutiny in speech cases involving national security.
Implications for Social Media and Future Regulation
The TikTok decision signals a willingness by the courts to uphold content-neutral regulations that address foreign ownership risks, even with significant speech implications. Other social media platforms, especially those with foreign ties, may face similar scrutiny. However, the Court's narrow focus on TikTok's specific circumstances leaves room for interpretation in future cases.
Moving forward, this ruling could inspire more legislation targeting foreign-controlled apps, balancing innovation with security. The interplay between executive actions, like potential overrides, and congressional law will shape the regulatory landscape. As technology evolves, so too will the legal frameworks governing free speech in the digital public square, ensuring that national security and constitutional rights remain in dynamic tension.