CARTER MERMER—TikTok, a social media platform used by 170 million Americans, allows users to create, share, and watch short videos. This functionally simple platform has nonetheless provided millions of Americans with a novel way to find news, entertainment, community, and even to make a living. Now, it might end up relegated to the history books.
A quick history lesson about how we got here. TikTok’s parent company, Chinese-owned ByteDance, bought its competitor, Musical.ly, in 2017. Since then, the app has exploded in popularity. In October 2019, politicians began to raise alarms about TikTok’s influence on national security; and, in January 2020, the Pentagon banned the app on all military phones. In August 2020, President Trump signed an Executive Order that prohibited American companies from transacting with ByteDance, TikTok’s parent company.
However, federal appeals courts enjoined that Order’s enforcement. Days after the first Executive Order was issued, President Trump issued a second, ordering ByteDance to divest itself of TikTok’s operations within 90 days. TikTok sued, and the D.C. Federal Circuit Court placed the case in abeyance to let the parties reach a non-divestiture agreement. The government determined that the proposal inadequately mitigated national security risks, and an agreement never occurred, leaving TikTok’s future in temporary limbo.
Reports on TikTok’s pushing harmful content, accessing nonpublic info on its users, and a warning from FBI director Christopher Wray led the U.S. Congress to pass and President Biden to sign the “Protecting Americans from Foreign Adversary Controlled Applications Act” in April 2024. That Act required a ban on TikTok or its sale to a U.S. company by January 19th, 2025, President Biden’s last day in office. TikTok quickly sued the government, raising First Amendment concerns.
A federal appeals court unanimously upheld the law on December 6th, 2024, and the Supreme Court agreed to hear the case. On January 17th, 2025, the ban or sell law was unanimously upheld by the Supreme Court, setting the stage for the app to go offline on January 19th, 2025. Late at night on January 18th, the app “went dark,” displaying this message on the welcome screen: “A law banning TikTok has been enacted in the U.S . . . Unfortunately, that means you can’t use TikTok for now.”
Early the next morning, President Trump announced he would issue an Executive Order following his upcoming inauguration, delaying enforcement of the law to give ByteDance sufficient time to find a U.S. buyer. Within hours, TikTok’s app became operable again, saying on the welcome screen, “Thanks for your patience and support. As a result of President Trump’s efforts, TikTok is back in the U.S.!”
On Inauguration Day, January 20th, 2025, President Trump signed an Executive Order delaying the ban by 75 days, extending the time window until April 5th, 2025.
Legal Analysis of the TikTok Ban Law and Supreme Court’s Ruling
The U.S. Government’s main concern with TikTok is that its parent company, ByteDance, is a Chinese company subject to Chinese laws which require ByteDance to “assist or cooperate” with the Chinese Communist Party’s (CCP) “intelligence work” and to ensure that the CCP has “the power to access and control private data” the company holds.
TikTok argued that the ban would burden various First Amendment activities, including content moderation and generation, access to a distinct medium for expression, association with another speaker, and receipt of information and ideas.
The Court assumed without deciding that the law was subject to First Amendment scrutiny. The majority characterized the law as content-neutral and therefore would receive the less stringent “intermediate scrutiny” test, as opposed to “strict scrutiny” for content-based laws that almost always invalidates them.
The Court characterized the law as content-neutral because it did not facially regulate based on “particular speech . . . of the topic discussed or the idea or message expressed,” just its ownership by a company that is controlled by a foreign adversary. The government’s content-neutral justification was to prevent the CCP from collecting vast amounts of sensitive data from 170 million American users, not because of its disagreement with the speech displayed on TikTok.
Application of strict scrutiny was rejected by the Court, even though it is usually applied when certain speakers are disfavored, because strict scrutiny is “unwarranted when the differential treatment is justified by some special characteristic of the particular speaker,” which here is its control by a data-collecting foreign adversary.
The applied intermediate scrutiny test requires an important government interest and that the law be significantly tailored to not burden more speech than necessary. The Court found both conditions satisfied.
The important government interest was to prevent the CCP from accessing Americans’ sensitive data that TikTok currently collects, including ages, phone numbers, precise locations, phone contacts, social network connections, and private messages sent through the app. The Court deferred to government evidence that China has a history of extensive accumulation of structured datasets of U.S. persons to support its intelligence operations.
The government also asserted an interest in preventing the CCP from having control over the TikTok algorithm which can alter the content on the platform. But the Court didn’t rely on this interest because it found that the strongly bipartisan bill would have passed solely on data collection concerns, even absent the content control justification.
The law was significantly tailored because it promoted the government’s interests in a “direct and effective way” that didn’t burden more speech than necessary, as the continued operation of the app is conditioned on divestiture instead of an outright ban.
Ultimately, the majority found that Congress’s determination that divestiture was necessary to address well-supported national security concerns regarding TikTok’s data collection practices and its relationship with the CCP was enough for the law to withstand intermediate scrutiny and be upheld.
As of January 27, 2025, the top contenders for buying TikTok include Elon Musk, investor Kevin O’Leary, the company Perplexity AI, and the owner of Oracle (which manages TikTok’s data centers), Larry Ellison. The fate of TikTok now depends on its divestiture.