The Supreme Court has upheld the Protecting Americans from Foreign Adversary Controlled Applications Act, which targets TikTok‘s Chinese parent company, ByteDance. In a per curiam ruling—in which the high court speaks with one voice—the justices determined that the legislation does not violate First Amendment rights. “The challenged provisions further an important Government interest unrelated to the suppression of free expression,” the opinion explained, emphasizing the law’s focus on national security rather than content regulation.
Congress has expressed concerns about TikTok’s data practices, with a House of Representatives report highlighting “the difficulty in assessing precisely which categories of data” the platform collects. The Court deferred to this legislative judgment, acknowledging, “We must accord substantial deference to the predictive judgments of Congress.”
While concurring in the judgment, Justice Sonia Sotomayor did raise some concerns about the Act’s implications for the First Amendment. Justice Neil Gorsuch, also concurring, raised doubts about content neutrality but said the national security arguments against “[a]llowing a foreign adversary to spy on Americans” were compelling.
This ruling should set the stage for TikTok’s ban in the U.S. unless BtyteDance divests, as the Act requires. However, Biden White House sources have indicated that the administration will not enforce the Act, which comes into effect on January 19 and will leave the issue for President-elect Donald J. Trump to deal with when he is inaugurated the following day.
Trump has said he has a “warm spot” for TikTok and hopes a political resolution to any outstanding issues can avert a ban.
