Supreme Court upholds looming TikTok ban

The Supreme Court on Friday upheld a federal law that would ban the Chinese-owned social media platform TikTok just two days before the bipartisan divestment law is set to take effect.

“There is no doubt that for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, engagement and source of community,” the court wrote in the unsigned order. “However, Congress has determined that the divestment is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.

“For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights. The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed.”

There were no noted dissents.

At issue was the Protecting Americans from Foreign Adversary Controlled Applications Act, a law passed by Congress last April with broad bipartisan support. The law gave TikTok nine months either divest its Chinese parent company, ByteDance, or be removed from US-based app stores and hosting services.

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In passing the law, Congress cited concerns over the app’s Chinese ownership, which members said meant the app had the potential to be weaponized or used to collect vast amounts of user data, including from the roughly 170 million Americans who use TikTok.

TikTok, ByteDance and several users of the app quickly sued to block the ban in May, arguing that the legislation would suppress free speech for the millions of Americans who use the platform. After a lower court upheld the ban, the Supreme Court agreed to hear TikTok’s emergency request to either block or halt implementation of the law under a fast-track timeline just nine days before the ban was due to take effect.

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During oral arguments, lawyers for the Biden administration reiterated the argument that TikTok’s Chinese ownership poses a “serious” national security risk to American users.

US Attorney General Elizabeth Prelogar cited risks that China could weaponize the app, including by manipulating its algorithm to prioritize certain content or by ordering parent company ByteDance to turn over vast amounts of user data collected by TikTok to US users.

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TikTok’s lawyers, meanwhile, tried to frame the case primarily as a restriction on free speech under the First Amendment, which the company has argued applies to TikTok’s US-based incorporation.

Noel Francisco, TikTok’s lawyer, argued that the U.S. government has “no valid interest in preventing foreign propaganda,” and reiterated TikTok’s position that the platform and its owners should be entitled to the highest level of freedom of speech under the U.S. constitution.

Francisco also argued that TikTok cannot divest itself from its Chinese parent company, citing parts of its source code and intellectual property located in China.

First Amendment protections must be considered under strict scrutiny, requiring the government to uphold a higher burden of proof to justify a law’s constitutionality.

More specifically, laws dealing with First Amendment protections must be crafted to serve a compelling governmental interest, narrowly tailored to achieve that interest.

It is a difficult legal test to meet in court. But the U.S. Court of Appeals for the District of Columbia Circuit used it last month to consider the divestment law and still voted to uphold it — outlining a way the Supreme Court could theoretically have considered the case under strict scrutiny and still chosen to uphold it. the law.

During oral submissions in the Supreme Court, several judges appeared skeptical of the company’s core argument, which is that the law is a speech restriction.

“What exactly is TikTok talking about here?” Judge Clarence Thomas asked in the opening moments of oral arguments in an early sign of the court’s apparent doubt that the law is actually a violation of the First Amendment.

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The Supreme Court and its 6-3 conservative majority have historically been deferential to Congress on matters of national security.

The divestment law in question passed Congress last year under the guidance of top Justice Department officials, who worked directly with House lawmakers to write the bill and help it withstand possible legal challenges.

But it also comes at a time when President-elect Trump has signaled apparent support for the app in recent months.

In December, Trump hosted TikTok CEO Shou Zi Chew at his Mar-a-Lago resort and later told reporters that his incoming administration will “take a look at TikTok” and the divestment case.

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Lawyers for the president-elect also filed a brief with the Supreme Court last month, asking the justices to delay any decision in the case until after Trump’s inauguration on January 20.

The brief did not signal how Trump might act, but cited his request that the court halt the ban from taking effect until Trump’s inauguration.

Fox News’ Bill Mears and Shannon Bream contributed to this report.