The US Supreme Court upheld the “Protecting Americans from Foreign Adversary Controlled Applications Act” on Friday. This confirms that the application TikTok will be banned on Sunday.
The act makes it unlawful for any entity to distribute a “foreign adversary controlled application” in the US. It explicitly singles out ByteDance Ltd, the parent company of TikTok. Congress was worried that ByteDance is subject to a Chinese law requiring it to cooperate with the Chinese government’s intelligence work.
In upholding the ban, the Supreme Court found that the act did not violate the First Amendment. For the purposes of the decision, it assumed that the act was subject to First Amendment scrutiny. It went on to find that the Act is not subject to strict scrutiny because it is content-neutral. Finally, it ruled that the act did not burden substantially more speech than necessary to further the important purpose of decreasing foreign interference.
The decision by the Supreme Court was largely expected. Last week, a JURIST dispatch commented that the Supreme Court appeared skeptical of TikTok’s First Amendment claims. However, one uncertainty was an amicus brief by president-elect Trump requesting that the Supreme Court delay the ban. He suggested that a “political resolution” was possible. Though it was brought up at hearing, the Supreme Court did not comment on the brief in its decision. In response to the decision, Trump posted on Truth Social:
The Supreme Court decision was expected, and everyone must respect it. My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned!
After the decision, the White House issued a statement echoing President-elect Trump’s ability to review and implement the law:
TikTok should remain available to Americans, but simply under American ownership or other ownership that addresses the national security concerns identified by Congress in developing this law. Given the sheer fact of timing, this Administration recognizes that actions to implement the law simply must fall to the next Administration, which takes office on Monday.
TikTok will be banned on Sunday if it is not sold to an American company before then, a near impossibility given the short timeline.
