TikTok ban: 5 takeaways from Supreme Court’s decision

The Supreme Court ruled Friday that a law requiring TikTok’s parent company to divest from the popular video-sharing platform or face a ban was constitutional, siding with the government in a battle over free speech and national security.

The decision marks a sharp loss for TikTok, although the app’s fate is still undecided.

The ban is slated to take effect Jan. 19, the final full day of President Biden's term. But the Biden administration has indicated it will leave enforcement to the incoming Trump administration, which will take over the White House on Monday.

Here are the main takeaways from Friday’s decision:

The future of TikTok is in Trump’s hands

The future of TikTok seemingly now rests I President-elect Trump’s hands after the Biden administration said it would not enforce the law, which was set to go into effect the day before Trump took office.

White House press secretary Karine Jean-Pierre said Friday the Biden administration recognizes that implementation “simply must fall” to the incoming administration, given “the sheer fact of timing.”

“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.

Trump, who during his campaign vowed to “save” TikTok, had urged the Supreme Court to delay the ban so he could take office and negotiate a deal to keep the app available to American users.

While the court’s decision and its speed is a blow to Trump, the Biden administration’s choice not to enforce the ban gives him more flexibility.

The president-elect is reportedly considering issuing an executive order to suspend enforcement of the law for two to three months while he attempts to reach a deal, according to The Washington Post.

“The Supreme Court decision was expected, and everyone must respect it,” Trump said Friday in a Truth Social post. “My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned!”

Tech companies face decision on compliance

While neither Biden nor Trump seem keen to enforce the ban, it remains unclear how the tech companies subject to the law will respond when it goes into effect Sunday.

The law bars companies from “distributing, maintaining, updating, or providing internet hosting services for” apps, like TikTok, that are under the control of a foreign adversary.

App store providers such as Apple and Google and Oracle — the cloud-computing firm that hosts TikTok — could face hefty fines from the Justice Department for defying the law if an administration eventually opts to enforce it.

Companies are subject to fines of up to $5,000 per user. With TikTok’s more than 170 million American users, they could face some $850 billion in fines.

Apple, Google and Oracle have not responded to questions about how they plan to handle TikTok on Sunday and beyond.

TikTok's data collection practices — not content — drove the court's decision

The court determined that the government’s national security concerns about TikTok were justified, and the law does not “burden substantially more speech than necessary” to address its concerns.

However, the justices based their decision on only one of the government’s two concerns about TikTok’s Chinese ownership. The Biden administration had raised alarm about China’s access to American user data, as well as the potential for the Chinese government to covertly manipulate TikTok’s algorithm.

The court agreed with the administration on data collection, rejecting TikTok’s argument that it is unlikely China would leverage its relationship with the platform to access U.S. user data.

“Here, the Government’s TikTok-related data collection concerns do not exist in isolation,” the majority opinion said, noting China’s “extensive” efforts to obtain U.S. data through various means.

On content manipulation, though, the court seemingly brushed the issue aside, finding the law was justified solely based on the data collection argument.

“The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone,” it wrote.

In a separate concurrence, Justice Neil Gorsuch splashed cold water on the argument.

“One man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’ Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them,” Gorsuch wrote.

Gorsuch warns about other apps

At last week’s oral arguments, Gorsuch expressed more sympathy with TikTok than perhaps any other justice.

Though Gorsuch ultimately voted with his eight colleagues that the law should be upheld, he did not join the court’s unsigned opinion. In his solo concurrence, the conservative justice expressed some hesitation, noting the constraints of hearing the case on an expedited schedule.

The justice, Trump’s first appointee to the court, also raised the possibility of another platform taking TikTok’s place.

“Whether this law will succeed in achieving its ends, I do not know,” Gorsuch wrote.

“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. … But the question we face today is not the law’s wisdom, only its constitutionality.”

The court assumed the First Amendment applied

At the heart of TikTok’s legal challenge was what level of First Amendment scrutiny applies.

The Biden administration contended free speech rights weren’t implicated at all because ByteDance, TikTok’s Chinese-based parent company, has no First Amendment protections. The Justice Department has cast the law as merely regulating a foreign adversary’s control of a company, not speech itself.

The Supreme Court’s decision doesn’t put the issue to rest.

“This Court has not articulated a clear framework for determining whether a regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review. We need not do so here,” read the court’s unsigned opinion.

“We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny,” it continued.

Justice Sonia Sotomayor, an appointee of former President Obama, agreed with her colleagues the ban should be upheld even if the First Amendment does apply, but she wrote a brief concurrence taking issue with the court’s mere assumption.

“I see no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does,” Sotomayor wrote.

Though the court didn’t firmly rule what level of scrutiny applies, the decision did, however, close off the idea that the strictest tier applies.

At most, the court said only an intermediate test applies. And the law would easily pass given the government’s important interest in protecting national security, the court ruled.

“On this record, Congress was justified in specifically addressing its TikTok-related national security concerns,” the opinion reads.

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