In a landmark decision issued on January 17, 2025, the Supreme Court of the United States affirmed the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act. The act effectively bans the operation of the popular social media platform TikTok in the United States unless it severs ties with its Chinese parent company, ByteDance Ltd. The court’s ruling addresses significant national security concerns related to foreign control over American data and the potential for covert content manipulation.

The law, which comes into effect on January 19, 2025, prohibits any U.S. companies from providing services to distribute, maintain, or update TikTok, pending the platform’s compliance with the stringent requirements to disconnect operationally from ByteDance. The decision came after TikTok Inc., alongside a cohort of U.S. users, challenged the act’s restrictions as a violation of First Amendment rights.

TikTok, known for its vibrant content and significant user engagement, has over 170 million users in the U.S. alone. The platform allows users to create and share short videos overlaid with audio, generating a vast amount of user data. According to the court, the law targets TikTok not for the content it hosts but due to the significant risks posed by the data it collects, which could potentially be accessed by the Chinese government under local laws that compel cooperation with national intelligence work.

Diverse Judicial Perspectives on TikTok Ban: Justices Sotomayor and Gorsuch Weigh In

In the Supreme Court’s decision affirming the constitutionality of the ban on TikTok, Justices Sotomayor and Gorsuch provided concurring opinions that illuminate their individual legal perspectives, despite their ultimate agreement with the outcome.

Justice Sotomayor’s Concurring Opinion: Justice Sotomayor concurred with the majority but specifically took the stance that the Act implicates the First Amendment directly, meriting heightened scrutiny. She emphasized that TikTok’s platform involves expressive activity through compiling and curating content, which inherently engages First Amendment protections. 

Sotomayor argued that the Act, by imposing a severe restriction on TikTok’s operation unless it undergoes a significant structural change, burdens expressive activities significantly. 

Justice Gorsuch’s Concurring in Judgment: Justice Gorsuch, concurring in judgment, provided a nuanced analysis, acknowledging the compelling government interest in protecting national security by preventing a foreign adversary from accessing American data. However, he expressed concern about the rapid judicial process and the potential implications of ruling under such constraints. Gorsuch highlighted the unique challenges posed by digital platforms like TikTok, which collect extensive data not only from users but also potentially from non-consenting third parties. His concurrence pointed out the difficulties in crafting legislative solutions that address these modern issues without infringing on constitutional rights. Moreover, he questioned whether the law was truly content-neutral and suggested that the government’s interest in preventing covert content manipulation does not straightforwardly avoid concerns about content-based restrictions.

Biden Administration Passes TikTok Ban Implementation to Trump

The Biden administration has officially stated that the implementation of the recent Supreme Court-upheld ban on TikTok will be the responsibility of the incoming administration. With President-elect Donald Trump set to take office in just two days, the timing of the Supreme Court’s decision places the onus on Trump’s team to enforce the new law.

After signaling a ban on TikTok in 2018, Trump said today on Truth Social, “My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned!”