Today the Supreme Court of the United States declined to block Congress’s TikTok ban, clearing the way for the ban to take effect on January 19, 2025.
On a quick look, banning an online forum where millions of Americans produce and consume content looks like a First Amendment free-speech issue. After all, the ban means that content creators are being prohibited from public speech and expression through their chosen platform, and consumers are being deprived of the unfettered expressions of their preferred speakers, all on account of a governmental directive.
A closer look at today’s opinion reveals how a First Amendment free-speech analysis is more nuanced. Free speech claims must first break through an initial threshold: determining whether heightened First Amendment scrutiny of the law at issue is appropriate at all. If the claims break through this initial threshold, courts must then determine the level of scrutiny that should be applied, and whether the law at issue satisfies constitutional concerns at that particular level.
In today’s opinion, the Supreme Court assumed, without deciding, that the initial threshold was met. The assumption helped those who wanted to see the ban struck down, but meeting the initial threshold wasn’t an open-and-shut matter. After all, the ban itself doesn’t ban creators or users of the app from disseminating or consuming content but regulates the corporate owners of the app and the corporations involved in supporting those owners’ data-collection activity.[1] The Court did nevertheless recognize that “an effective ban on a social media platform with 170 million U.S. users certainly burdens those users’ expressive activity in a non-trivial way.” But ultimately, the Court declined to prepare a new framework for determining whether restraints on non-speech activity with substantial burdens on users deserve First Amendment review—it simply granted that review to open a path for addressing the heart of the issue.
At its heart, the Court found the ban to be content-neutral, supported by an important government interest, and not so burdensome on speech as to violate the First Amendment. The ban on its face is content-neutral (the law does not prohibit any particular content), and for the Court the government’s stated concern— “preventing China from collecting vast amounts of sensitive data from 170 million U.S. TikTok users”—is a “purpos[e] unrelated to the content of expression,” making the purpose of the ban content-neutral as well. Thus the Court’s review fell into an “intermediate scrutiny” analysis where the Court assessed whether the ban “further[ed] an important Government interest unrelated to the suppression of free expression[,]” but did not “burden substantially more speech than necessary” in furtherance of that government interest.
The Court had no difficulty concluding that the government’s interest was an important one and that it was unrelated to suppressing free speech. Whether the ban burdened substantially more speech than necessary was a closer question, but ultimately for the Court the ban was tailored neatly enough. For the Court, the ban did not need to be “the least speech-restrictive means of advancing the Government’s interests[,]” and the Court declined to sift through other possible alternative ways to prevent foreign data mining. Instead, the government was granted wide latitude “to design regulatory solutions to address content-neutral interests.” This meant that as long as the government’s means were not “substantially broader than necessary” to achieve its content-neutral goal, the Court would not invalidate the ban simply because it could conclude that the same goal could be met through “some less-speech-restrictive alternative.” Within this latitude, the government’s means were indeed not overly broad, and the end result was that the TikTok ban could not be blocked as unconstitutional.
For content creators and consumers, the opinion heralds the end of TikTok, absent some action by Congress or the President, or some divestment into wholly-U.S.-based ownership. For the lawyers in the room, narrowness and deference are key takeaways here. The Court opened with an embrace of a heightened sense of caution given the expedited timeline for its review—only two weeks between the close of briefing and publication of the opinion—and explicitly warned that the opinion “must be understood to be narrowly focused[.]” Justice Gorsuch closed the decision with a raw concurrence emphasizing that the Court was not called to consider the wisdom of the TikTok ban but only whether the ban is constitutional, and counseled us that, at least on his part, all that can be said in the opinion is that “at this time and under these constraints, the problem appears real and the response to it is not unconstitutional.”
As for deference, hot on the heels of the Loper Bright opinion undercutting the deference previously enjoyed by federal agencies, the Court today upholds strong deference to Congress (at least in this instance of “striking bipartisan support”) and Congress’s determinations both on policy and implementation. Indeed the Court was clear that the ban’s validity did not depend on whether or not the Court agreed with the government’s decision that the TikTok ban is “best or ‘most appropriate’[,]” and that it declined to “displace [the Government’s] judgment respecting content-neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence[.]” The deference afforded here is clear.
Today’s opinion is certainly not a direct expression of how the Supreme Court wields doctrines of deference toward the other branches of government. At best in this regard, it may provide an interesting aside for analysts of the Court to consider. Of course, with the express and implied warnings about its precedential value throughout today’s opinion, no pronouncement today is as direct or impactful as that found in Loper Bright, nor can we expect today’s opinion to have a meaningful impact on the Court’s deference jurisprudence. The new deference era remains in its nascent stages and is one worthy of monitoring by all Court observers and federal administrative-law litigators.
[1] Much could be written about First Amendment treatment of regulation of public platforms as an indirect means of impermissibly regulating speech. The Court did not create nor condone such clever workarounds today, nor did it upend Supreme Court precedent that would prevent them.
