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January 17, 2025 | Entertainment

Supreme Court Greenlights TikTok Ban, Sidestepping Strict Scrutiny

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Author(s)
Curtis Fuller

Associate Attorney

Supreme Court Upholds TikTok Ban Under Intermediate Scrutiny

In an extraordinary decision today, the Supreme Court unanimously upheld the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act, which will force TikTok to either divest from Chinese ownership or shut down U.S. operations by January 19, 2025.

The Court determined that intermediate rather than strict scrutiny was appropriate, despite the law’s substantial burden on protected expression affecting 170 million American users.  While Justice Gorsuch’s concurrence openly expressed “serious reservations” about whether the law was truly content-neutral and questioned whether the Court’s scrutiny analysis “obscures more than it clarifies,” the majority pressed forward with this traditional analysis.

Data Collection vs. The First Amendment

In applying intermediate scrutiny, the Court acquiesced to the government’s assertion that its primary justification (preventing China from collecting Americans’ user data) was content “agnostic.”  The Court dismissed arguments that the law’s targeting of TikTok required more exacting review, finding instead that TikTok’s “scale and susceptibility to foreign adversary control” justified discrepant treatment.
Notably, the Court sidestepped the government’s problematic justification about preventing “covert manipulation of content,” which would likely have triggered strict scrutiny as a content-based restriction.  Instead, it relied exclusively on the data collection rationale to sustain the law.

The ruling sets a groundbreaking precedent for how courts will analyze government regulation of social media platforms.  While the Court emphasized the narrow nature of its holding, the framework it established opens the door for increased regulation of media in the interest of national security concerns to circumvent strict scrutiny.

The case highlights the perennial tension between First Amendment protections and national security interests in an era of evolving technological threats.  Despite acknowledging the law’s impact on expression, the Court prioritized the government’s national security authority over the First Amendment claims of millions of American users and content creators, who stand to lose not only their preferred medium of expression, but also substantial economic opportunities built on the platform.

Implications for Social Media Regulation the First Amendment

The law takes effect on January 19, 2025. Beyond TikTok’s 170 million U.S. users and creators who stand to be immediately impacted, the broader implications of the ruling for other social media platforms and their users remain to be seen.

Follow us as the story continues to develop.

 

Photo by Alexander Shatov on Unsplash
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