Unanimous Supreme Court Upholds TikTok Divestiture Law

Justices ruled the law is content-neutral and said the national security concerns justify the First Amendment impact. Justices Sonia Sotomayor and Neil Gorsuch each wrote concurring opinions largely agreeing with the court opinion. “We emphasize the inherent narrowness of our holding,” the opinion said. “But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”

The law’s divestiture requirement takes effect Sunday, but the White House issued a statement Friday that it will leave President-elect Donald Trump to decide enforcement. “Given the sheer fact of timing, this Administration recognizes that actions to implement the law simply must fall to the next Administration, which takes office on Monday,” White House Press Secretary Karine Jean-Pierre said in a release.

In a Truth Social post on Friday, Trump called the ruling “expected” and said it must be respected. “My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned!” In an earlier post Friday, Trump said he discussed TikTok and other subjects with China’s head of state, Chairman Xi Jinping. “It is my expectation that we will solve many problems together, and starting immediately.”

TikTok CEO Shou Zi Chew, in a statement Friday, thanked Trump for his commitment to work with the company toward “finding a solution that keeps TikTok available in the United States.” The company will do everything in its power to ensure the platform “thrives as your online home for limitless creativity and discovery” for years to come, he said. “More to come.” Keeping the platform operable in the U.S. would be a “strong stand” for the First Amendment and “against arbitrary censorship,” he said.

The provisions of the divestiture law “impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States,” said the opinion. “They do not target particular speech based upon its content.”

That means the court isn’t required to apply its strict scrutiny standard to the law -- which presumes unconstitutionality -- and can instead judge it under intermediate scrutiny, which requires laws to further an important government interest by means related to that interest.

The divestiture law is “designed to prevent China -- a designated foreign adversary -- from leveraging its control over ByteDance Ltd. to capture the personal data of U.S. TikTok users,” the opinion said. “This objective qualifies as an important Government interest under intermediate scrutiny.” The justices appeared to telegraph this line of thinking at oral argument last week, when the entire court appeared receptive to the government's national security concerns. A law “targeting any other speaker would by necessity entail a distinct inquiry and separate considerations,” the opinion said.

Sens. Ed Markey, D-Mass.; Rand Paul, R-Ky.; Cory Booker, D-N.J.; and Chris Van Hollen, D-Md., joined Rep. Ro Khanna, D-Calif., this week in introducing the Extend the TikTok Deadline Act, a bill that would delay Sunday’s deadline by 270 days.

Khanna told us Wednesday he’s been urging President Joe Biden to exercise his authority under the new law to extend the deadline by 90 days. Trump will have the same discretion, Khanna said, even after Sunday’s deadline, and an extension would allow TikTok to work toward “appropriate” solutions.

Sen. John Cornyn, R-Texas, told us the deadline shouldn’t be extended. “Part of the problem is explaining to people that it’s not actually a ban,” he said. “It’s a prohibition against the Chinese Communist Party actually owning it and basically spying on the American people.” If TikTok closed tomorrow, the Chinese government would find other ways of “steal[ing]” information from American consumers, the lawmaker said. China should not be granted another 270 days to “spy” on TikTok users, he added.

Paul told us TikTok should have every opportunity to respond to the new law, but he doesn’t support a delay because it leaves the measure in place. Paul has characterized the divestment law as “authoritarian” censorship mirroring Chinese attitudes on free speech.

SCOTUS “accepted the government’s argument that there are speech-neutral reasons for a law to single out TikTok” but ignored evidence in the legislative record “that TikTok was targeted because of the speech on the platform,” said Thomas Berry, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, in a post on X. Also in a post on the platform, Jeff Westling, American Action Forum director-technology and innovation policy, said, “It seems stark that data collection was the justification of the courts but preventing bytedance/ccp from influencing speech was the more serious justification in public.”

Effectively banning a social media platform “certainly burdens” its 170 million U.S. users' ability to express themselves, the court said, but the law doesn’t target the content of speech on TikTok, it targets “a foreign adversary’s control” over the platform.

In his concurrence, Gorsuch faulted the rushed timeline of the court’s decision and appeared to warn that arguments from the government raising concerns of TikTok's “covert manipulation of content” come close to infringing free speech rights. “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’ Gorsuch said. “Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them. Without question, the First Amendment has much to say about the right to make those choices.” Gorsuch’s concurrence “is important to cabin the rougher edges of what is necessarily an imperfect per curiam written under the clock,” posted Daniel Lyons, professor at Boston College Law School. In her concurrence, Sotomayor said SCOTUS precedent “leaves no doubt” that the law implicates the First Amendment.