Supreme Court Upholds Law Restricting TikTok’s Operations in the U.S.

By Cameron Schlagel, V.R. Bohman, and Derek Flint

On January 17, 2025, the Supreme Court issued its decision in TikTok Inc. v. Garland, affirming the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act), which restricts the operations of the social media platform TikTok in the U.S. due to national security concerns regarding data collection by the Chinese government. The Court held that the Act does not violate the First Amendment rights of TikTok and its users, because the Act is content neutral and sufficiently tailored to further the government’s important interest in preventing a foreign adversary — China — from accessing the personal data of millions of Americans. The Court also declined to consider the government’s alternative justification based on preventing China from covertly manipulating the content on TikTok, and rejected the Petitioners’ arguments based on the Act’s alleged under-inclusiveness and the availability of less restrictive alternatives.

Background

TikTok, a social media platform with over 170 million U.S. users and over one billion worldwide, is operated in the U.S. by TikTok Inc., an American company. Its parent company, ByteDance Ltd., operates in China and owns TikTok’s proprietary algorithm. ByteDance, the Court explained, is subject to Chinese laws requiring cooperation with the Chinese government’s “intelligence work” and ensuring the government has “the power to access and control” the “private data” the company stores.

In response to national security concerns, in August 2020, then-President Trump issued an executive order, invoking the International Emergency Economic Powers Act and the National Emergencies Act, to prohibit certain transactions involving ByteDance or its subsidiaries. Federal courts enjoined those prohibitions, finding they exceeded executive authority. President Trump also ordered ByteDance to divest its U.S. TikTok operations. ByteDance and TikTok challenged that order, and the case was placed in abeyance in February 2021 to allow the Biden administration to review the issue. Negotiations for a national security agreement continued through 2021 and 2022 but were unsuccessful.

In 2024, Congress enacted the Act, making it unlawful for any entity to provide services “to distribute, maintain, or update” a “foreign adversary controlled application” in the U.S. The Act designates applications operated by ByteDance or TikTok as foreign adversary controlled and establishes a framework for other applications. The prohibitions take effect 270 days after designation, with a possible 90-day extension. The Act excludes companies operating an application “whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.” It also exempts applications that undergo a qualified divestiture, ensuring they are no longer controlled by a foreign adversary and have no operational relationship with formerly affiliated entities.

ByteDance, TikTok, and two groups of TikTok users and creators petitioned for review in the D.C. Circuit, arguing that the Act’s prohibitions, TikTok-specific designation, and divestiture requirement violate the First Amendment. The D.C. Circuit denied the petitions, holding that the Act does not violate First Amendment rights because, assuming strict scrutiny applied, the Act is narrowly tailored to compelling national security interests. Chief Judge Srinivasan concurred, suggesting intermediate scrutiny. The Supreme Court granted certiorari.

Key Issues

The key issues before the Supreme Court were: (1) whether the challenged provisions of the Act are subject to First Amendment scrutiny; (2) if so, whether the challenged provisions are content based or content neutral; (3) if content based, whether the challenged provisions are narrowly tailored to serve compelling government interests; and (4) if content neutral, whether the challenged provisions further important government interests unrelated to the suppression of free speech and do not burden substantially more speech than necessary to further those interests.

Majority Opinion

The Supreme Court affirmed the D.C. Circuit’s decision, holding that the Act does not violate the First Amendment.

To begin, the Court assumed without deciding that the challenged provisions are subject to First Amendment scrutiny, because they may disproportionately burden TikTok and its users’ expressive activities. It noted, however, that the Act does not directly regulate protected expressive activity or conduct with an expressive component — it does not regulate content creators, but rather only directly regulates ByteDance and TikTok through the divestiture requirement. The Court also mentioned the lack of a clear framework for determining whether a regulation of non-expressive activity that disproportionately burdens expressive activity triggers heightened review, but it chose not to decide that question in this case.

Next, the Court held that the challenged provisions “are facially content neutral and are justified by a content-neutral rationale.” The Petitioners argued that the Act is content-based because it excludes companies operating applications for product, business, or travel reviews. The Court rejected that argument, finding those exclusions irrelevant to the First Amendment analysis. Instead, the Act imposes TikTok-specific prohibitions based on a foreign adversary’s control over the platform and require divestiture for continued U.S. operation. They do not target speech based on content, function, or purpose, nor do they impose a restriction, penalty, or burden based on the content of TikTok posts. The restrictions are instead supported by a content-neutral justification: preventing China from collecting “vast amounts of sensitive data” from U.S. TikTok users. This rationale, the Court concluded, is content agnostic, as it does not reference the content of speech on TikTok or reflect disagreement with its message. That said, the Court emphasized the narrowness of its holding and cautioned against extending it to other contexts.

Applying intermediate scrutiny, the Court held that the Act furthers an important government interest “unrelated to the suppression of free expression” and does not burden substantially more speech than necessary. The Act’s prohibitions and divestiture requirement aim to prevent China — a designated foreign adversary — from leveraging its control over ByteDance to capture U.S. TikTok users’ personal data, and data about other Americans located on their devices. This is undoubtedly an important government interest because the platform’s collection of extensive device information could enable China to track federal employees, build dossiers for blackmail, and conduct corporate espionage. Chinese law, in turn, allows the government to require companies to surrender data, effectively making them espionage tools. The Court deferred to Congress’ predictive judgments and rejected arguments about the Act’s under-inclusiveness and less restrictive alternatives. It noted that the First Amendment imposes no freestanding under-inclusiveness limitation, and Congress had good reason to single out TikTok. Ultimately, Congress has latitude to design regulatory solutions for content-neutral interests, and the validity of the Act’s provisions does not depend on the Court agreeing with the government’s chosen path. The Act clearly serves the government’s data collection interest directly and effectively, and are not substantially broader than necessary. The Court declined to consider the government’s alternative justification of preventing China from covertly manipulating TikTok content, finding it unnecessary to resolve the case.

Concurring Opinions

Justice Sotomayor filed an opinion concurring in part and concurring in the judgment. She disagreed with the Court’s decision to assume without deciding that the Act implicates the First Amendment, and argued that the Court’s precedent “leaves no doubt that it does.” She pointed out that TikTok engages in expressive activity by “compiling and curating” content on the platform, and laws that “ ‘impose a disproportionate burden’ upon those engaged in expressive activity are subject to heightened scrutiny under the First Amendment.” In Justice Sotomayor’s view, the Act clearly burdens expressive activity by preventing any entity from distributing TikTok’s content in the U.S. unless TikTok completes a qualified divestiture, and by essentially forbidding TikTok from working with certain entities on its “content recommendation algorithm” even after divestiture. She also noted that the Act implicates the right of content creators to associate “with their preferred publisher ‘for the purpose of speaking,’ ” which also calls for First Amendment scrutiny. Nevertheless, Justice Sotomayor agreed that the Act survives First Amendment scrutiny.

Justice Gorsuch also filed an opinion concurring in the judgment. He expressed several tentative observations, given the expedited time allowed for the Court’s consideration. He commended the Court for refraining “from endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’ as a justification for the law,” noting that “[o]ne man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’ ” and that the First Amendment “has much to say about the right to make those choices.” He also praised the Court for declining to consider the classified evidence the government submitted to the Court but shielded from the Petitioners and their counsel, noting that “[e]fforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.” Yet, Justice Gorsuch expressed reservations about whether the law is content neutral, thus escaping strict scrutiny. He also worried that litigation over the tiers of scrutiny can sometimes obscure rather than clarify “the ultimate constitutional questions.” He was persuaded, however, that the law seeks to serve a compelling interest: “preventing a foreign country, designated by Congress and the President as an adversary of the Nation, from harvesting vast troves of personal information about tens of millions of Americans.” Justice Gorsuch noted that the record established that TikTok mines data from TikTok users about millions of others who may not use TikTok and may not consent to share their information, and that the Chinese government can require TikTok’s parent company to cooperate with government efforts to obtain such personal data, which may then be used for various nefarious purposes. He deferred to Congress’ informed judgment on these matters, and found the government’s data collection justification sufficient to sustain the challenged provisions. He also found that the law appears appropriately tailored to the problem it seeks to address, noting that the coordinate branches “spent years in negotiations with TikTok exploring alternatives and ultimately found them wanting.”

Conclusion

The Court’s decision in TikTok is a significant one: it upholds a law that restricts the operations of one of the most popular and influential social media platforms in the U.S. The decision may have implications for the future of online speech, data privacy, and national security, as well as for the relationship between the U.S. and China. It may also affect other foreign-owned or controlled applications that operate in the U.S. and collect personal data from U.S. users, as they may face similar scrutiny or regulation from the government, including designation under the Act. That said, the Court was clear that the decision is narrowly focused on the specific circumstances and record of this case, and it cautions against extending its holding to other speakers or contexts. The decision leaves open some questions about the appropriate level of First Amendment scrutiny for laws that have both content-neutral and content-based justifications. And, it recognizes the challenges and uncertainties involved in applying established legal rules to new technologies with transformative capabilities. The Court’s deference to Congress’ “informed judgment” in this respect is notable. The decision may not be the final word on TikTok’s fate in the U.S. as the platform may still seek to undergo a qualified divestiture or challenge the implementation of the Act’s prohibitions. However, at minimum, the opinion marks a significant milestone in the long-running legal saga involving TikTok and the U.S. government.