The Supreme Court unanimously affirmed a Friday law requiring TikTok’s parent company in China to divest itself from the app. This ban will go into effect Sunday.
Just three days before Donald Trump took office, the justices found that the law on divest or ban did not violate the First Amendment. Trump asked the justices to extend the deadline to negotiate a deal. Instead, the court acted at breakneck speed.
The Biden administration has no plans to enforce the law before Trump’s inauguration. They will leave the final decision up to Trump; for now, it appears the app can remain online.
In its opinion, the court stated that “there is no doubt” that TikTok provides a unique and expansive means of expression, engagement, and community for more than 171 million Americans. “But Congress determined that divestiture was necessary to address their well-supported concerns about TikTok’s data collection practices, and its relationship with a hostile foreign adversary.”
The court’s judgment was unanimous, even though Justices Sonia Sotomayor (left) and Neil Gorsuch (right) filed separate concurrences.
The law was signed by President Biden in April and passed by Congress with a wide bipartisan majority. It gave TikTok’s parent company ByteDance up to 270 days before it would be banned from U.S. App Stores.
TikTok has said that divestment was not an option and that it will be “dark” starting Sunday. It argued that the impending ban violated the First Amendment rights of both the company and its 170 million American users.
The court rejected these arguments and ruled in favor of the government. The Biden administration argued that free speech concerns were overshadowed by national security interests regarding the app’s links to China. This raised alarm about the Chinese government’s ability to access Americans’ data or manipulate TikTok’s algorithm.
The court’s ruling reads: “Under these conditions, we find that the Government’s justification for data collection is sufficient to support the challenged provisions.”
Gorsuch, in his concurrence with the Court’s decision, said that the Court was correct to reject the rationale of covert content manipulation and not to rely upon secret government evidence.
“I don’t know if this law will achieve its goals. Unwilling adversaries may simply replace a lost surveillance application with another. Less dramatic, but more effective, solutions may be found as threats change and time goes on. “Even what could happen to TikTok next is unclear”, Gorsuch wrote.
Sotomayor wrote a brief letter separately criticizing the court for assuming that the First Amendment applied but not conclusively deciding it. She said, “Our precedent leaves little doubt” that it did.
Karine Jean Pierre, White House Press Secretary, said that the Biden Administration believes TikTok must remain available for Americans.
“President Biden’s position on TikTok has been clear for months, especially after Congress sent a bipartisan bill to the President. TikTok must remain available for Americans, however, under American ownership, or another ownership that addresses national security concerns as identified by Congress when developing this law,” Jean Pierre said in a press release.
She noted, however, that “given just the timing of the implementation,” it “must fall to the next Administration.”
The court’s ruling is a major blow for Trump, who, in an amicus brief, argued that the Supreme Court put off the Jan. 19 deadline so he could try to negotiate a new deal after assuming office.
Trump’s sympathy for TikTok has increased as the ban approaches. Trump will attend the inauguration of TikTok CEO Shou Zi Chew, and He may sign an executive order to circumvent this ban. President-elect Trump said that he spoke with Chinese President Xi Jinping during a phone call about the future of TikTok.
The president-elect announced Friday that, after the Biden administration confirmed it would leave enforcement up to Trump, he will “make the decision.”
Trump told CNN, “It’s ultimately up to me. You’re going to see what I do.” He added, “Congress gave me the decision. I’ll make the decision.”
Jacob Huebert is the president of the Liberty Justice Center and a member of the team representing several TikTok creators. He said he was disappointed with the court’s ruling to maintain “such a broad restriction on Americans’ rights to free speech.”
Huebert said, “President Trump is aware of the precedent that this ban creates. We hope he follows through on his intentions to reach an agreement to save the platform.”
Chuck Schumer, the Senate Minority Leader (D-NY), has also backed the video-sharing platform. On Thursday, he called for a postponement of Sunday’s deadline.
The court acted quickly to resolve TikTok’s lawsuit, and not by delaying the deadline. The court agreed to hear the case on December 19, and issued its final opinion on Friday, just one week after oral arguments.
The court has acted faster in this case than in other recent cases, such as when it granted broad immunity to Trump and former Presidents in July. Months earlier, the justices had rejected a move to remove Trump from Colorado’s ballot under the 14th Amendment insurrection prohibition.
TikTok will eventually cease to function, even though it won’t disappear from users who have already downloaded the app. The law prevents app stores from distributing or updating the app.
The platform may also consider shutting the app down completely if the ban takes effect on Sunday.
Apple and Google have not responded to immediate questions about whether they intend to keep TikTok in their app stores, given the Biden Administration’s decision not to enforce the law.
ByteDance has said that it is not realistic to expect the company to change course. Many investors have expressed an interest in purchasing TikTok. Frank McCourt, the billionaire behind Project Liberty, made a formal bid to ByteDance.
Biden has only three days remaining in his term and can grant a 90-day delay if divestment begins. TikTok’s normal operation could resume even if Biden doesn’t.
