On January 17, 2025, the U.S. Supreme Court upheld the ban on TikTok under the Protecting Americans from Foreign Adversary Controlled Applications Act. Under this Act (“impugned Act”), no entity could provide any service, distribute, maintain or update a “foreign adversary-controlled application” in the United States. TikTok Inc. v. Merrick B. Garland, Attorney General 604, U.S. ……….. (2025).

The First Amendment, which zealously protects free speech, reads as follows:

AMENDMENT I.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.”

TikTok is operated in the United States by TikTok Inc., which is incorporated and headquartered in California. Its ultimate parent company is a privately held company called ByteDance Ltd., which owns TikTok’s proprietary algorithm that is developed and maintained in China. ByteDance is also in control of the source code that runs the TikTok platform and is responsible for developing portions of this source code. Significantly, under Chinese law, ByteDance is required to assist and cooperate with the intelligence work of the Chinese Government, which also has the statutory right to access and control the private data of ByteDance and TikTok.

The U.S. Supreme Court noted that TikTok, launched in 2017,  had accumulated over 170 million users in the United States and more than one billion worldwide. By 2023, TikTok users had uploaded more than 55 billion videos, which were viewed  more than 13 trillion times around the world.

Even in the past, there were serious security concerns about the Chinese control of TikTok and its parent company ByteDance. President Trump had issued an executive order in August 2020, calling upon the parent Chinese company to divest all its interest in any property held by TikTok, along with any data obtained or derived from TikTok users in the U.S. This was initially challenged and there were certain orders placing the prohibition in abeyance. After President Biden came to power, these orders were reviewed, and extensive negotiations were held between 2021 and 2022, which ultimately failed to result in any agreement.

This led to passing of the impugned Act. Under the impugned Act, ByteDance had 270 days to divest its holdings in TikTok, and the last date was January 19, 2025. The Act was initially challenged as violating the First Amendment, before the DC Circuit Court which rejected the challenge. (Interestingly, the presiding judge was Chief Judge Srinivasan who delivered the judgment). TikTok appealed to the Supreme Court.

Just two days before the last date, the U.S. Supreme Court delivered a near unanimous verdict upholding the constitutional validity of the impugned Act. TikTok contended that the ban violated the First Amendment as millions of users would not be able to express their views. Further, it was also argued that giving just 270 days to divest the holding of the parent company was burdensome. It appealed that there were several other options that could be resorted to by the U.S. Government. TikTok and ByteDance argued that China, even otherwise, had more effective and efficient means of obtaining such information.

On the other hand, the U.S. government contended that there was no restriction on what could be published or expressed on the social media platform. The impugned law did not target any particular view or any specific topic or idea; there was no restriction of any kind of content on the social media platform.

The government, therefore, contended that the impugned Act was “content-neutral” and did not violate the First Amendment.  Its main intent was to prevent China from collecting vast amount of sensitive data from 170 million users of TikTok in the U.S.   It argued that the data collection and analysis of such large data of users could result in enormous sensitive data coming under the control of a foreign adversary. TikTok was able to collect extensive personal information about the users, their social network, communication contents and their private messages including the videos. It noted that TikTok collected user data, user behavioural data, device and network data. Thus, China had access to detailed information about millions of U.S. users and this could be used to build dossiers of personal information for blackmail and even to conduct corporate espionage. It particularly noted that, under Chinese laws, ByteDance could be compelled to surrender the data to the government, thus making it a potential espionage tool of China.

In a short and well-reasoned 27-page judgment, the Supreme Court noted that the decision to ban TikTok was a policy decision. The parent company was a “foreign adversary”, and the impugned Act was intended to promote substantial government interest to prevent China from gathering data from U.S. TikTok users. The court also refused to consider whether the government could adopt less restrictive measures. It held that if the government policy was grounded on reasonable factual findings supported by evidence that were substantial for a legislative determination, it would not interfere. It further held that the ban did not fail the intermediate scrutiny test, particularly, keeping in mind the tight interlinkage between TikTok and the Chinese government. The requirement of divesting the parent holding was necessary to address well-supported national security concerns, particularly because of the data collection practices of TikTok and its relationship with a foreign adversary.

The court then considered whether the provisions of the impugned Act were violative of the First Amendment. After discussing the earlier cases that protected free speech, the court observed that the impugned Act was facially “content neutral”; it did not target any type of speech, nor did it seek to regulate what could be posted on the platform. Once the law was “content neutral”, it was open to the Government to insist on divestment.  It accepted that the 270-day time limit to divest the parent company’s holding would definitely impact 170 million users.  Such a law would curb expressive activities “in a non-trivial way”. However, the First Amendment would still not be violated  because the focus of the law was to deal with an adversarial relationship between China and the United States.  The law was valid as its object was “content agnostic”. The divestiture was designed to prevent China, a foreign adversary, from leveraging its control over ByteDance to capture personal data of U.S. TikTok users. The U.S. Government had an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users. The challenge to the First Amendment was thus rejected.

The judgment merits careful reading as it discusses the interplay between the national security interests and the wide ambit and scope of the First Amendment that, inter alia, protects free speech. Significantly, it also notes the difficulties in applying established legal principles to totally new problems that arise because of new technologies with transformative capabilities.

Lastly, it noted the wise counsel of Justice Frankfurter who, 80 years ago, had advised caution in applying old rules to new problems, requiring the court not to “embarrass the future”.

This article covers the legal aspects of the ban, particularly, the challenge based on the First Amendment. Readers may note that President Trump has put the ban on hold by an executive order.  It has been announced that the ban will not take effect for another 75 days while negotiations continue between TikTok Inc. and the US Government.

Arvind P. Datar is a Senior Advocate.