The Supreme Court ruled on Friday that the federal government can legally shut down TikTok in the U.S., delivering a stunning blow to the viral video app used by about half of Americans.
Last April, President Biden signed a bipartisan bill that said TikTok must spin off from its China-based parent company, or shut down in the U.S.
TikTok contested the ban in court, arguing that it violates the free speech rights of both users and the company – an appeal that it took all the way to the Supreme Court, which heard the case on Jan. 10.
The high court’s decision means that starting on Jan. 19, tech giants Apple and Google can no longer offer TikTok in their app stores. Web-hosting providers must cut ties with the platform or be subject to fines of $5,000 for each user that can still access the service, a penalty that can easily add up to billions of dollars.
TikTok’s seemingly nonstop legal limbo has sown widespread confusion among users over when and if the app will indeed stop working one day. But now, the country’s highest court has affirmed the federal ban.
“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. 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 wrote in an unsigned opinion. “We conclude that the challenged provisions do not violate petitioners’ First Amendment rights.”
The Justices acknowledged the tight timeframe they were operating under, emphasizing that the ruling should be seen as applying only to TikTok, not as a sweeping precedent. “That caution is heightened in these cases, given the expedited time allowed for our consideration. Our analysis must be understood to be narrowly focused in light of these circumstances,” the Justices wrote.
Anupam Chander, a law professor at Georgetown University who has followed the TikTok case closely, said the Justices did indeed frame the ruling as TikTok-specific, but it could have implications that exceed the app’s corporate ownership.
“There is a Bush v. Gore aspect to the decision in that it’s a one-off and not meant to have greater precedential value,” said Chander, referring to the landmark 2000 ruling. “But this will be a very important decision,” he said. “And it gives enormous power to Congress to act on data privacy questions.”
The ruling follows an emergency hearing held last week in which justices appeared skeptical that the free speech rights of millions of American TikTok users should surpass the national security risk Congress says China poses. Lawmakers fear the Chinese government could use the app to spy on Americans or disseminate pro-China propaganda, even though TikTok skeptics have never shown concrete examples of that happening.
When Congress passed the law in April taking aim at TikTok, lawmakers provided a way for the company to avoid expulsion: Fully divest from China-based parent company ByteDance, which would resolve the national security concerns of lawmakers and the intelligence community in Washington.
But to TikTok executives, that is merely a symbolic life raft, since ByteDance has consistently indicated that the platform, China’s first global social media hit, is not for sale. Furthermore, export control laws in China prevent TikTok’s algorithm from being sold unless Beijing regulators bless the transaction, something China experts have said the country is not likely to do.
The only Justice to voice concern about the free speech implications of a ban was Neil Gorsuch, who called banning TikTok to remove the China threat a “paternalistic point of view.”
“I mean, don’t we normally assume that the best remedy for problematic speech is counter speech?” said Gorsuch, adding that TikTok has raised the possibility of including a disclaimer on its app indicating that some content could be covertly manipulated by China.
U.S. Solicitor General Elizabeth Prelogar, representing the federal government, quickly shot that down with this analogy: “Imagine if you walked into a store and I had a sign that said one of 1 million products in this store causes cancer,” she told the court. “That is not going to put you on notice about what product is actually jeopardizing your health.”
All eyes are now on President-elect Donald Trump. He filed a brief with the Supreme Court ahead of last week’s oral arguments asking that the justices delay a ruling to provide him time for his administration to cut a “negotiated solution” that would resolve the national security concerns.
Trump, who tried unsuccessfully to ban TikTok in his first term, has since reversed course and now wants to save the app. He has publicly attributed his change of heart to his belief that TikTok boosted the youth turnout vote for him in November. But others have pointed to the timing of his flip-flop coming after Trump met with a billionaire hedge fund manager whose trading group owns a major stake in ByteDance, TikTok’s parent company.
The TikTok ban will start Jan. 19. The following day, Trump will be sworn into office.
Once in the White House, Trump can instruct his Justice Department to not enforce the ban. That would put Apple, Google and other companies that do business with TikTok in an awkward position, since the firms would technically be in violation of federal law.
Another scenario is that Trump could extend the start date of the ban, even though it will have already started on Jan. 19.
“As I understand it, we shut down. It is possible that come January 20, 21st, 22nd, we might be in a different world,” said TikTok’s lawyer Noel Francisco to the court last week, suggesting Trump may be able to put the ban on pause.
Indeed, under the law, the president can delay the ban for a 90-day period, but only in the event that progress has been made toward a sale away from ByteDance.
Prelogar, with the federal government, told the court during oral arguments that if the ban takes effect, it might just give the U.S. government enough leverage to convince ByteDance and Chinese regulators to allow the sale of TikTok to an American company or group of U.S. investors.
“When push comes to shove and these restrictions take effect, I think it will fundamentally change the landscape with respect to what ByteDance is willing to consider, and it might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process,” she said.
