Supreme Court upholds TikTok ban. No one knows what comes next

In a unanimous ruling, the Supreme Court voted Friday to uphold a law that will require TikTok to shut down as soon as Sunday, unless its Chinese parent company, ByteDance, agrees to sell the app.

The court agreed with the U.S. government that it is within its rights to try to mitigate the national security risk that Congress has decided TikTok poses.

“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 Justices wrote in an unsigned decision. “For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights.” 

The decision is a devastating blow for TikTok, as well as free speech advocates who have long warned that cutting off Americans’ access to TikTok would set a dangerous precedent for government suppression of speech. “The Supreme Court’s ruling is incredibly disappointing, allowing the government to shut down an entire platform and the free speech rights of so many based on fear-mongering and speculation,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “By refusing to block this ban, the Supreme Court is giving the executive branch unprecedented power to silence speech it doesn’t like, increasing the danger that sweeping invocations of ‘national security’ will trump our constitutional rights.” 

The case before the court concerned the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act, which President Joe Biden signed into law last year. The law did not explicitly ban TikTok, but instead would effectively force the app to shut down by prohibiting any app stores or hosting services from doing business with “foreign adversary controlled applications.” Under the law, TikTok, ByteDance, and any of its affiliates are included in that classification, and violators risk penalties of $5,000 per user if they fail to comply. The only escape hatch for ByteDance would include a divestment that satisfies the president’s national security concerns. (TikTok did not immediately respond to Fast Company‘s request for comment.)

During oral arguments last week, the U.S. solicitor general argued that, in this way, the law sidesteps First Amendment concerns, because “all of the same speech that’s happening on TikTok could happen post-divestiture.” 

The Justices agreed. “It is not clear that the Act itself directly regulates protected expressive activity, or conduct with an expressive component. Indeed, the Act does not regulate the creator petitioners at all.  And it directly regulates ByteDance Ltd. and TikTok Inc. only through the divestiture requirement,” the decision reads. TikTok, they wrote, had 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. We hesitate to break that new ground in this unique case.”

The Justices emphasized throughout that their decision should be read narrowly, due to the particulars of the case—namely “TikTok’s scale and susceptibility to foreign adversary control.”

“A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations,” they wrote.

Justices Neil Gorsuch and Sonia Sotomayor each wrote their own concurring opinions. In his concurrence, Gorsuch emphasized that the court had not endorsed the government’s argument that it has the right to prevent “the covert manipulation of content” on TikTok. “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’” Gorsuch wrote. And yet, he said he was “persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans.” 

Just what will happen next is still unclear. TikTok has previously said that, if the Supreme Court sided with the government, it would shut down this Sunday, as required under the law. While the app would not disappear from users’ phones, they could reportedly see a pop-up notification beginning Sunday, informing them about the ban. Some users, preparing for this possibility, have already fled in protest to another Chinese app, RedNote, illustrating the challenge of playing whack-a-mole with consumer applications. 

It’s still possible that President-elect Donald Trump, who will be inaugurated Monday, will issue an executive order that would suspend enforcement of the ban. In an interview on Fox this week, Florida Rep. Mike Waltz, who is Trump’s pick for national security advisor said, “I don’t want to get ahead of our executive orders, but we’re going to create this space to put that deal in place.” In a sign of Trump’s allegiance to the company, TikTok CEO Shou Zi Chew is expected to join fellow tech executives including Jeff Bezos, Elon Musk, and Mark Zuckerberg at the inauguration Monday. 

Still, such an order would, itself, likely be subject to legal challenges, and app store giants like Apple and Google, as well as hosting providers, may be skittish about openly flouting the law, despite the new president’s assurances that it won’t be enforced.

In Congress, meanwhile, Democratic Senator Ed Markey introduced his own bill to extend the deadline for the ban by 270 days, but the bill has faced opposition from conservatives, including Arkansas senator and China hawk Tom Cotton. On Thursday, Senate minority leader Chuck Schumer joined in calling on his colleagues to push forward an extension, writing on Bluesky that “it’s clear that more time is needed to find an American buyer for TikTok.” 

“We will continue working to keep TikTok alive, protect content creators’ livelihoods, protect against [Chinese Communist Party] surveillance, and protect national security,” he wrote. “I will work with the Trump Admin to find a solution.”

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