Supreme Court Upholds TikTok Ban, But Future Remains Uncertain

The Supreme Court on Friday unanimously upheld a law requiring TikTok's China-based parent company to divest from the app, paving the way for a ban set to take effect on Sunday, The Hill reports. The justices sided with the Biden administration, finding that the divest-or-ban law does not violate the First Amendment, just three days before President-elect Trump is set to take office. Trump had urged the justices to delay the deadline so he could negotiate a deal, but the court acted swiftly.

However, the Biden administration has announced it will not enforce the law ahead of the inauguration, leaving the decision to Trump and seemingly allowing the app to remain online for the time being.

“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 court said in its opinion. “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 court’s decision was unanimous, although Justices Sonia Sotomayor and Neil Gorsuch filed separate concurrences. The law, passed by bipartisan majorities in Congress and signed by President Biden last April, gave TikTok's parent company ByteDance 270 days to divest from the app or face a ban from U.S. app stores.

TikTok has argued that divestment is not feasible and that it will “go dark” as of Sunday, contending the impending ban infringes on the First Amendment rights of both the company and its 170 million American users. The court rejected these arguments, ruling in favor of the government. The Biden administration asserted that any free speech concerns are outweighed by a national security interest due to the app’s ties to China, raising concerns that the Chinese government could access American data or manipulate TikTok’s content algorithm.

“Under these circumstances, we find the Government’s data collection justification sufficient to sustain the challenged provisions,” the court’s opinion reads.

In his concurrence, Gorsuch acknowledged the uncertainty surrounding the effectiveness of the law and the future of TikTok. Sotomayor, in a separate concurrence, criticized the court for not firmly deciding that the First Amendment applies to the situation, arguing that "our precedent leaves no doubt that it does."

Following Friday’s decision, White House press secretary Karine Jean-Pierre emphasized the Biden administration’s belief that TikTok should remain available to Americans, but only under different ownership. However, she acknowledged that due to the timing, implementation “simply must fall to the next Administration.”

The court's decision presents a significant challenge to Trump, who argued in a friend-of-the-court brief that the Supreme Court should delay the January 19 deadline to allow him to negotiate a deal once in office. Trump has expressed growing sympathy for TikTok as the ban neared, and TikTok CEO Shou Zi Chew will attend his inauguration. Trump is reportedly considering signing an executive order to circumvent the ban.

“It ultimately goes up to me, so you’re going to see what I’m going to do,” Trump told CNN, adding, "Congress has given me the decision, so I’ll be making the decision."

Jacob Huebert, president of the Liberty Justice Center and part of the team representing several TikTok creators in the case, expressed disappointment with the court’s decision, calling it "such a sweeping restriction on Americans’ right to free speech."

The court acted remarkably quickly to resolve TikTok’s lawsuit, agreeing to take up the case on December 19 and issuing its full opinion just a week after hearing oral arguments. While the app itself will not immediately disappear for existing users, TikTok is expected to become unusable as the law prevents app stores from distributing the app or providing updates. The platform is also reportedly considering shutting down entirely if the ban takes effect on Sunday.

Apple and Google have not yet responded to inquiries about whether they plan to keep TikTok on their app stores in light of the Biden administration's decision not to enforce the law. ByteDance could potentially reverse course and agree to divest, although it has maintained that this is not a realistic option. Several investors have expressed interest in buying TikTok, with billionaire Frank McCourt’s Project Liberty making a formal offer to ByteDance last week.