Supreme Court upholds TikTok ban

The Supreme Court on Friday unanimously upheld a law requiring TikTok’s China-based parent company to divest from the app, teeing up a ban set to take effect Sunday.

The justices sided with the Biden administration, finding 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 instead acted with breakneck speed.

However, the Biden administration does not plan to enforce the law ahead of inauguration, ultimately leaving the decision to Trump and seemingly allowing the app to stay 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 was unanimous in its judgment, although Justices Sonia Sotomayor and Neil Gorsuch filed separate concurrences.

The law, which was passed by wide 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 divestment is not a feasible option and that it will “go dark” as of Sunday. It contended the impending ban infringes on the First Amendment rights of both the company and its 170 million American users.

The court rejected those arguments, instead ruling in favor of the government. The Biden administration asserted that any free speech concerns are superseded by a national security interest over the app’s ties to China, raising alarm that the Chinese government could access Americans’ data or covertly manipulate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 said the court was right to not rely on the covert content manipulation rationale and also not rely on secret evidence from the government.

"Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another. As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear,” Gorsuch wrote.

Sotomayor, meanwhile, briefly wrote separately to criticize the court for not firmly deciding the First Amendment applies, only assuming it does, saying “our precedent leaves no doubt that it does."

Following Friday’s decision, White House press secretary Karine Jean-Pierre emphasized the Biden administration believes TikTok should remain available to Americans, just not under its current ownership.

“President Biden’s position on TikTok has been clear for months, including since Congress sent a bill in overwhelming, bipartisan fashion to the President’s desk: TikTok should remain available to Americans, but simply under American ownership or other ownership that addresses the national security concerns identified by Congress in developing this law,” Jean-Pierre said in a statement.

However, she noted that “given the sheer fact of timing,” implementation “simply must fall to the next Administration.”

The court's decision deals a significant blow to Trump, who argued in a friend-of-the-court brief that the Supreme Court should put the Jan. 19 deadline on hold so he could attempt to negotiate a deal once in office.

Trump has increasingly expressed sympathy with TikTok as the ban approached. TikTok CEO Shou Zi Chew will attend Trump’s inauguration, and Trump is reportedly considering signing an executive order to circumvent the ban. The president-elect said Friday that he discussed the fate of TikTok with Chinese President Xi Jinping during a call.

With the Biden administration’s confirmation it will leave enforcement to Trump, the president-elect said Friday that he’ll be “making the decision.”

“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, said they were disappointed by the court’s decision to uphold “such a sweeping restriction on Americans’ right to free speech.”

"President Trump has recognized the dangerous precedent this ban sets, and we hope he will follow through with his stated intention to reach a deal to save the platform,” Huebert added.

The video-sharing platform has also gained an ally in Senate Minority Leader Chuck Schumer (D-N.Y.), who on Thursday called for postponing Sunday’s deadline.

Rather than delay the deadline, the court instead acted remarkably fast to resolve TikTok’s lawsuit at every stage. It agreed to take up the case on Dec. 19, and on Friday issued its full opinion just a week after hearing oral arguments.

It’s a faster timeline than even other cases the court recently expedited, including when it carved out broad criminal immunity for Trump and former presidents in July, and months earlier, when the justices rejected an effort to kick Trump off Colorado’s ballot under the 14th Amendment’s insurrection ban.

Though the app would not automatically disappear for users who already downloaded it, TikTok is expected to eventually become unworkable, as the law blocks app stores from distributing the app or providing updates.

However, the platform is reportedly also considering shutting down the app entirely if the ban goes into effect Sunday.

Apple and Google did not immediately respond to questions about whether they plan to keep TikTok on their app stores in light of the Biden administration’s decision not to enforce law.

ByteDance could reverse course and agree to divest, though it has insisted doing so is not realistic. Several investors have expressed interest in buying TikTok, with billionaire Frank McCourt’s Project Liberty making a formal offer to ByteDance last week.

If divestment is underway, Biden, with only three days left in office, has the authority to grant a 90-day delay. Even if he doesn’t, TikTok could resume normal operations once a sale is complete.

Updated at 11:09 a.m. EST

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