FOLLOW US

The U.S. Supreme Court upheld on Friday a federal law requiring TikTok to be divested from its Chinese parent company, ByteDance, over national security concerns or face a nationwide ban, ruling that the requirement did not violate the social media platform's free speech rights.

"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 a per curiam decision. "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 justices reviewed the law under intermediate scrutiny, a standard used to evaluate restrictions on constitutional rights that must further an important government interest in a way substantially related to that interest.

The challenged law, the Protecting Americans from Foreign Adversary Controlled Applications Act, requires TikTok, headquartered in California, to be divested from ByteDance or cease operations in the U.S. This stems from concerns over ByteDance's ties to the Chinese Communist Party, as several of its executives hold positions within the party. ByteDance also owns the source code for TikTok’s recommendation algorithm, which is central to the platform's functionality, and is subject to Chinese laws granting the government access to its data.

TikTok argued that the algorithm was developed by a "global engineering team" and is maintained by U.S.-based engineers for the American version of the platform. However, the government contended that these safeguards were insufficient to mitigate risks tied to Chinese influence and potential access to sensitive data.

In their challenge, TikTok, ByteDance, and several American users of the platform argued that Congress improperly enacted the sale-or-ban law to suppress viewpoints expressed on TikTok. They cited statements from lawmakers accusing the platform of amplifying content aligned with Chinese Communist Party policies, including anti-Israel and anti-Ukraine rhetoric.

A D.C. Circuit panel upheld the law in December, ruling that it survived the highest level of judicial review—strict scrutiny—because it was narrowly tailored to achieve the government’s compelling national security interests. The Supreme Court, while applying intermediate scrutiny, similarly found the law justified and necessary to address security risks.

The Biden administration emphasized that the law serves critical national security objectives, both by safeguarding American user data and by preventing potential manipulation of the content seen by TikTok's users in the U.S.

TikTok and ByteDance were represented by Noel J. Francisco and Hashim M. Mooppan of Jones Day, Andrew J. Pincus and Avi M. Kupfer of Mayer Brown LLP, and Alexander A. Berengaut, David M. Zionts, Megan A. Crowley, John E. Hall, and Anders Linderot of Covington & Burling LLP.

The TikTok users challenging the law were represented by Jeffrey L. Fisher and Joshua Revesz of O'Melveny & Myers LLP, as well as Ambika Kumar, Tim Cunningham, Xiang Li, Elizabeth A. McNamara, Chelsea T. Kelly, James R. Sigel, and Adam S. Sieff of Davis Wright Tremaine LLP.

The federal government was represented by Solicitor General Elizabeth B. Prelogar and attorneys from the U.S. Department of Justice, including Edwin S. Kneedler, Sopan Joshi, Mark R. Freeman, Sharon Swingle, Daniel Tenny, Casen B. Ross, Sean R. Janda, and Brian J. Springer.

The cases are TikTok Inc. et al. v. Garland, case number 24-656, and Firebaugh et al. v. Garland, case number 24-657, in the Supreme Court of the United States.