SCOTUS Rejects First Amendment Challenge to TikTok Ban

On January 17, 2025, the U.S. Supreme Court upheld the Protecting Americans from Foreign Controlled Applications, which will require TikTok to shut down in the United States unless its Chinese parent company divests its interest. The Court’s decision in TikTok Inc. v. Garland, 604 U.S. ____ (2025), was unanimous.

Facts of the Case

TikTok is a social media platform used by more than 170 million Americans. TikTok Inc.’s parent company is ByteDance Ltd., a privately held company that has operations in China. ByteDance Ltd. owns TikTok’s proprietary algorithm, which is developed and maintained in China. The company is also responsible for developing portions of the source code that runs the TikTok platform. ByteDance Ltd. is subject to Chinese laws that require it to “assist or cooperate” with the Chinese Government’s “intelligence work” and to ensure that the Chinese Government has “the power to access and control private data” the company holds.

In recent years, U.S. government officials have taken steps to address national security concerns surrounding TikTok. In April 2024, Congress took legislative action against TikTok by enacting the PAFACAA as part of a supplemental appropriations act. The controversial new law makes it unlawful for app stores and internet hosting services to enable the distribution, maintenance, or updating of a foreign adversary controlled application unless the application’s owners execute a “qualified divestiture.” The PAFACAA expressly includes applications operated by TikTok Inc. or its parent company ByteDance, Ltd., in the definition of “foreign adversary controlled application” due to their association with the Chinese government. Because the PAFACAA itself designates applications operated by “ByteDance, Ltd.” and “TikTok,” prohibitions as to those applications take effect 270 days after its enactment—January 19, 2025.

ByteDance Ltd. and TikTok Inc.—along with two sets of TikTok users and creators (creator petitioners)—filed suit in the D.C. Circuit Court of Appeals, challenging the constitutionality of the Act. In challenging the law, TikTok and its users argue that the PAFACAA violates the First Amendment and constitutes an unlawful bill of attainder under Article I. The D.C. Circuit Court of Appeals upheld the ban, finding that the government’s national security justificationswere valid.

Supreme Court’s Decision

In a per curium opinion, the Supreme Court unanimously upheld the PAFACAA, concluding that it “does not violate petitioners’ First Amendment rights.”

In reaching its decision, the Court first determined that the PAFACAA should be subject to immediate scrutiny because the challenged provisions are facially content neutral. The Court further found that the Act’s TikTok-specific distinctions fail to trigger strict scrutiny. It wrote:

The prohibitions, TikTok-specific designation, and divestiture requirement regulate TikTok based on a content-neutral data collection interest. And TikTok has special characteristics—a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U. S. users—that justify this differential treatment.

The Supreme Court went on to determine that the Act satisfies intermediate scrutiny because the challenged provisions further an important Government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest

“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 support, it noted that“the record reflects that China has engaged in extensive and years-long efforts to accumulate structured datasets, in particular on U.S. persons, to support its intelligence and counterintelligence operations.”

The Supreme Court also found thatthe PAFACAA is “sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U.S. persons who use TikTok.” As the Court explained, the Act’s provisions “account for the fact that,” unless TikTok is sold, “TikTok’s very operation in the United States implicates the Government’s data collection concerns, while the requirements that make a divestiture ‘qualified’ ensure that those concerns are addressed before TikTok resumes U.S. operations.”