The TikTok Ban Is a Dumpster Fire

On Friday, Jan. 17, the Supreme Court upheld the D.C. Circuit’s ruling in a 9–0 vote, though there are a lot of important nuances between the two rulings. First, the Supreme Court rejected the idea that the law was narrowly tailored so that it would pass strict scrutiny. Justice Samuel Alito even reiterated that almost no law ever passes strict scrutiny (I hope the D.C. Circuit was listening). The court pointed out that the government could require a disclaimer on the app, rather than a ban, which would be more in line with how other online apps are regulated.

Second, the Supreme Court pushed back on many of the government’s claims that the lower court had simply accepted. For example, the court blasted Solicitor General Elizabeth Prelogar for the claim that China was “covertly” manipulating users. Justice Elena Kagan noted that all social media recommendation algorithms are equally unknowable to users and that “everybody now knows that China is behind [the TikTok algorithm].”

While the Supreme Court took a much closer and more critical look at many parts of the case, there were also some glaring omissions. One important point is that the Supreme Court only agreed to hear the case based on potential First Amendment issues, not as to whether it was a bill of attainder. As Alan Morrison, an associate dean at George Washington University Law School, points out, the latter claim had a much stronger case, so the fact that the court explicitly chose not to touch that issue stands out.

It’s also worth noting while some on the court, like Justice Amy Coney Barrett, seemed to have a decent grasp of the technical issues, many on the court seemed to lack digital media literacy. This was most clearly displayed when Justice Sonia Sotomayor seemed shocked that TikTok had access to users’ contacts … just like every other app on their phone.

In the end, the court determined that the data collection issues were not content based and that intermediate scrutiny applied, which meant that the law was subject to fewer constitutional requirements. It found the claims of secret national security concerns compelling, despite Justice John Roberts voicing concern over this secret evidence during oral arguments. Also, because TikTok had the option to sell to avoid being banned, it was a reasonable way to address the issue under the more lax requirements of intermediate scrutiny.

While I can definitely understand the logic behind the Supreme Court’s decision based on the evidence it considered, it clearly decided to pick and choose how to approach that evidence. Besides limiting itself to just the question of First Amendment rights, it chose to take a very literal approach to the law when such a reading supported a ban, but considered points in greater context when it didn’t.

For example, it decided that restricting how China could potentially manipulate content was not technically content in and of itself—ignoring the fact that clear concerns over content like propaganda have been present and perhaps more central to the government’s concerns throughout the case.

On the other hand, it determined that, as a Chinese company, TikTok does not receive First Amendment rights—despite the fact that technically, TikTok is an American company incorporated in Delaware and headquartered in Los Angeles and Singapore. Additionally, TikTok already migrated all the data of its American users from Alibaba Cloud servers in Singapore to Oracle servers in the U.S. This would seem to refute a lot of the government’s accusations on its own, but the whereabouts of Americans’ actual data was apparently less relevant than the location of the company that owns the holding company that in turn owns TikTok.

From the perspective of legal precedent, this is nowhere near as irresponsible as the flawed logic of the D.C. Circuit’s ruling, but this kind of cherry-picking of facts could easily bypass Americans’ First Amendment rights in other situations too.

Another issue in this case is the extreme deference to the government’s claims of national security concerns. While such deference is customary, it is not automatic (again, ignoring context when it’s convenient). Thus far, there is no evidence that user data has been turned over to the Chinese Communist Party, nor that it has interfered in any way with how TikTok interacts with its American users.

While we, of course, don’t have access to the secret intelligence information presented to Congress, some, like Congresswoman Alexandria Ocasio-Cortez, have stated that they found the information less than compelling and that none of it was substantive. The Supreme Court could have asked to see that information in a closed meeting, but it chose to give Congress the benefit of the doubt, which I don’t think was warranted in this situation.

While this marks the end of TikTok’s legal journey, we’re not left with much closure. There are still a lot of legal questions left unanswered, and some new ones have been raised. For example, in August 2024, the Third Circuit Court of Appeals ruled that TikTok was not protected by Section 230 of the Communications Decency Act because the TikTok algorithm was not a neutral mechanism, but rather a form of expression by the company. In other words, algorithms are speech. Claiming that TikTok doesn’t qualify for Section 230 protections but also doesn’t qualify for First Amendment protections creates a double standard that can only be resolved by another Supreme Court case.