The Legal Empowerment Blog
What you need to know
The U.S. Supreme Court is currently deliberating on a case that could profoundly impact social media, global tech governance, and free speech rights. The case concerns legislation requiring ByteDance, TikTok’s China-based parent company, to divest its ownership. If enacted, the law would effectively force TikTok, one of the most widely used platforms in the United States, to cease operations unless its ownership changes hands. With 170 million active users in the U.S. alone, the stakes are monumental—not only for TikTok but also for how governments regulate foreign tech companies in an increasingly interconnected world.
The U.S. government's scrutiny of TikTok has intensified over the years, primarily due to national security concerns.
The Trump administration issued executive orders aiming to ban TikTok unless its U.S. operations were sold to an American company. Legal challenges delayed these efforts, and the bans were not implemented.
The Biden administration revoked the previous executive orders but initiated a comprehensive review of apps with ties to foreign adversaries, including TikTok.
The U.S. Supreme Court heard arguments regarding the constitutionality of the law mandating TikTok's divestiture, with a decision anticipated soon.
At the heart of the legal arguments are two competing constitutional and policy questions:
1. TikTok argues that the law infringes upon its free speech rights, protected under the First Amendment. This claim extends to its users, who rely on the platform for creative expression, political discourse, and cultural exchange. TikTok contends that its algorithm’s unique ability to tailor content to user preferences fosters a distinct speech environment, one that is irreplaceable by other platforms;
2. The government defends the law by highlighting national security risks. Solicitor General Elizabeth Prelogar emphasized concerns about ByteDance’s potential obligation to share data with the Chinese government under China’s intelligence laws. Prelogar pointed to allegations that ByteDance had previously misused user data, including claims of monitoring journalists’ physical locations.
The oral arguments revealed the Court’s struggle to balance these competing interests. Chief Justice John Roberts appeared cautious about second-guessing Congress’s findings on national security, pointing to evidence that ByteDance could be subject to Chinese intelligence directives. Justice Brett Kavanaugh echoed concerns over the misuse of data but questioned whether the proposed law’s remedy—banning TikTok or forcing divestiture—was proportionate to the threat. Justice Elena Kagan and Justice Sonia Sotomayor delved deeper into the specific legal issues. They questioned whether TikTok’s free speech rights were directly implicated, given that the law targets ByteDance rather than the content on the platform. Sotomayor raised the point that, theoretically, TikTok could continue operating under a different ownership structure, which complicates the claim that the law is purely suppressive of speech. The potential outcomes of this case extend far beyond TikTok itself. A ruling upholding the law would set a precedent for regulating foreign-owned tech companies, particularly those from nations with competing geopolitical interests. Such a decision could embolden lawmakers to enact similarly sweeping measures against other platforms, reshaping the landscape of tech governance in the U.S. Conversely, striking down the law could reaffirm First Amendment protections in the digital age, emphasizing the rights of platforms and their users against government overreach. However, it might also hinder legislative efforts to address genuine security concerns related to foreign technology.
This case underscores the delicate connection between safeguarding constitutional freedoms and addressing emerging threats in a digitized world. On one hand, platforms like TikTok have become indispensable tools for individual expression, business innovation, and global connectivity. Restricting access to such platforms could stifle creativity and economic opportunity for millions of users, disproportionately affecting small creators who have built livelihoods on its unique algorithm. On the other hand, national security concerns cannot be dismissed lightly. The risk of foreign governments exploiting user data or manipulating platform content poses a legitimate threat, particularly in light of documented cases of surveillance and disinformation campaigns. However, such risks must be addressed with precision, ensuring that legislative measures do not serve as a blunt instrument that undermines fundamental rights.
