The Supreme Court on Friday unanimously upheld a law requiring TikTok’s China-based parent company to divest from the app, teeing up a ban set to take effect Sunday.
The justices sided with the Biden administration, finding that the divest-or-ban law does not violate the First Amendment just three days before President-elect Trump is set to take office. Trump had urged the justices to delay the deadline so he could negotiate a deal, but the court instead acted with breakneck speed.
However, the Biden administration does not plan to enforce the law ahead of inauguration, ultimately leaving the decision to Trump and seemingly keeping the app online for the time being.
“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,” the court said in its opinion. “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 was unanimous in its judgement, although Justices Sonia Sotomayor and Neil Gorsuch filed separate concurrences.
The law, which was passed by wide bipartisan majorities in Congress and signed by President Biden last April, gave TikTok’s parent company ByteDance 270 days to divest from the app or face a ban from U.S. app stores.
TikTok has argued divestment is not a feasible option and that it will “go dark” as of Sunday. It contended the impending ban infringes on the First Amendment rights of both the company and its 170 million American users.
The court rejected those arguments, instead ruling in favor of the government. The Biden administration asserted that any free speech concerns are superseded by a national security interest over the app’s ties to China, raising alarm that the Chinese government could access Americans’ data or covertly manipulate TikTok’s content algorithm.
“Under these circumstances, we find the Government’s data collection justification sufficient to sustain the challenged provisions,” read the court’s opinion.
In his concurrence, Gorsuch said the court was right to not rely on the covert content manipulation rationale and also not rely on secret evidence from the government.
“Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another. As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear,” Gorsuch wrote.
Sotomayor, meanwhile, briefly wrote separately to criticize the court for not firmly deciding the First Amendment applies, only assuming it does, saying “our precedent leaves no doubt that it does.”
The decision deals a significant blow to Trump, who argued in a friend-of-the-court brief that the Supreme Court should put the Jan. 19 deadline on hold so he could attempt to negotiate a deal once in office.
Trump has increasingly expressed sympathy with TikTok as the ban approached. TikTok CEO Shou Zi Chew will attend Trump’s inauguration, and Trump is reportedly considering signing an executive order to circumvent the ban. The president-elect said Friday that he discussed the fate of TikTok with Chinese President Xi Jinping during a call.

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