One of the most popular social media platforms is TikTok, which is owned by ByteDance, Ltd., which operates from China. Over 170 million Americans have subscribed to the site, which is best known for its short, often humorous, videos. This platform is the subject of the Supreme Court’s decision in TikTok v. Garland, 604 U.S. ____ (2025).
Law made it illegal for TikTok to operate in U.S., citing national security
China remains a communist nation that has expanded its influence throughout the world and has threatened to force Taiwan, a neighboring island democracy and longtime American ally to whom the United States has sold weapons, to reunite with it. It has threatened other nations in the area as well.
In August 2020, then President Donald J. Trump indicated that “the spread in the United States of mobile applications developed and owned by companies in [China] continues to threaten the national security, foreign policy, and economy of the United States.” In an age of the rise of artificial intelligence, he was particularly concerned about the capability of the Chinese government to gain information about Americans and to influence their opinions.
In response to such concerns, in April 2024, a strong bipartisan majority in Congress adopted the Protecting Americans from Foreign Adversary Controlled Applications Act. It made it unlawful for companies to provide services enabling TikTok to operate within the United States after 270 days (January 19, 2025), unless the company was sold to a non-Chinese owner. It did, however, permit the president to grant a one-time extension of 90 days or fewer if the president thought that progress was proceeding for the application’s divestiture.
TikTok owners claimed law violated U.S. speech protections
As this Jan. 19 deadline approached and TikTok remained under ByteDance ownership, it brought suit against the law, defended by Attorney General Merrick Garland, on the basis that it violated the First Amendment freedom of speech.
The D.C. Circuit Court of Appeals agreed that the law should be subject to heightened (rather than intermediate) judicial scrutiny but found that the governmental interest in national security against Chinese data collection and covert content manipulation, met this compelling standard and that the law was narrowly tailored to achieve such interests.
As the deadline for divestiture approached, TikTok appealed to the U.S. Supreme Court, with incoming President Trump now filing a brief asking the court to delay the ban.
Supreme Court ruled law banning TikTok was constitutional
The Supreme Court issued an unsigned per curiam opinion on Jan. 17, 2025, making no specific mention of Trump’s request for delay and deciding that the law banning TikTok’s operation in America absent a divestiture was constitutional.
The court observed that “Laws that directly regulate expressive conduct can, but do not necessarily, trigger such [First Amendment] review.”
Court said law regulated corporate control, not speech
It said that TikTok, and those who wanted to continue using the platform, “have not identified any case in which this Court has treated a regulation of corporate control as a direct regulation of expressive activity or semi-expressive conduct,” but that this case resembled cases in which it was alleged that governmental regulations imposed “a disproportionate burden” on First Amendment rights.
TikTok claimed that the government’s ban without divesture would burden “various First Amendment activities, including content moderation, content generation, access to a distinct medium for expression, association with another speaker or preferred editor, and receipt of information and ideas,” which the Court had recognized in other cases.
The court observed, however, that “a law targeting foreign adversary’s control over a communications platform is in many ways different in kind” from those cases. The court “assumed without deciding” that a regulation “of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review.”
The court observed that it was particularly concerned about “content-based laws” that targeted speech “based on its communicative content,” whereas it typically subjected “content-neutral laws” to intermediate scrutiny.
Law was not concerned with content of speech, court said
The court said that laws were considered to be content based if they were based on “the topic discussed or the idea or message expressed” or if such laws “’cannot be justified without reference to the content of the regulated speech’ or was ‘adopted by the government ‘because of disagreement with the message the speech conveys.’” Neither consideration was present in this case because the law was adopted “due to a foreign adversary’s control over the platform” rather than on the “content,” or “function and purpose” of its content. The court further classified government concerns about Chinese collection of information on U.S. citizens as being “content agnostic” rather than content based. It further ruled that “the Act’s TikTok-specific distinctions…do not trigger strict scrutiny.”
The opinion emphasized “the inherent narrowness of our holding,” and TikTok’s “scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects.”
Court said China could use information for espionage, blackmail
The court pointed out that TikTok could access “’any data stored in the user’s contact list,’ including names, contact information, contact, photos, job titles, and notes.” It observed that TikTok might allow “China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” It further thought that it owed “substantial deference to the predictive judgment of Congress” regarding international affairs.
Concluding that the law survived intermediate scrutiny, the court noted that a law did not require use of the least-restrictive means, as long as the law “promotes a substantial government interest that would be achieved less effectively absent the regulation’ and does not ‘burden substantially more speech than is necessary.’” It further observed that ByteDance had used its data “to train the TikTok recommendations algorithm, which is developed and maintained in China.”
Other opinions in the case
Justice Sonia Sotomayor wrote a brief concurring opinion accepting the government’s national security rationale but more clearly acknowledging that the law in question implicated and burdened First Amendment rights.
Justice Neil Gorsuch, pointing to the brief time the court had to consider this case prior to the law’s application, offered only “a few, and admittedly tentative, observations.” He endorsed the court’s unwillingness to endorse “the government’s asserted interest in preventing ‘the covert manipulation of content’” as a justification for the law, because he thought that “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’”
Gorsuch agreed with the court’s decision not to look at classified evidence that the government was unwilling to share with TikTok and its counsel. He harbored “serious reservations about whether the law before us is ‘content neutral’ and thus escapes ‘strict scrutiny,” although he also believed that the law at issue would survive such scrutiny. He also believed that the law was properly tailored to address its concerns. Although he was uncertain that the law would necessarily accomplish its objectives, he noted that the court task was not that of assessing the law’s “wisdom” but only its “constitutionality.”
Trump delays TikTok ban, would support 50-50 business partnership
Although the outgoing Biden Administration allowed the TikTok ban to go into effect, causing the app to go dark for a day, incoming President Trump issued an executive order indicating that he would not enforce the ban for 75 days and suggesting that he might support a 50-50 partnership over the platform between the U.S. and ByteDance. Other entrepreneurs have indicated some interest in buying it.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.