There are limits to the First Amendment, under established U.S. Supreme Court precedent. There is no constitutional protection for inciting violence, committing perjury, or child pornography, for example. But when the justices convene on Friday to consider legislation that would effectively ban the video-based social media app TikTok in the United States as of January 19, they will be asked to carve out another exception, at least implicitly: for speech that the government says might threaten national security.
Civil liberties groups warned that the TikTok ban cannot be squared with the First Amendment, and that the lower court that upheld the ban in December improperly deferred to the government’s speculative arguments about the app’s potential national security risks.
“Although the government invokes ‘national security’ to justify its sweeping ban, that does not alter the applicable First Amendment standards,” argued a civil liberties coalition, including the American Civil Liberties Union and the Electronic Frontier Foundation, in a brief supporting TikTok and a group of TikTok creators suing to block the law. “In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when the government invokes national security.”
The TikTok ban case pits free speech against the specter of foreign threats. And many fear the Supreme Court will tip the balance against the First Amendment rights of TikTok’s millions of American users and creators.
The TikTok ban took shape during the first Trump administration, and it culminated with passage of the Protecting Americans From Foreign Adversary Controlled Applications Act in April 2024. The bill was tacked onto a foreign aid package for Ukraine and Israel, and it passed overwhelmingly in Congress. (President-elect Donald Trump, who endorsed banning TikTok during his first term, reversed course after joining the platform last summer; in a bizarre brief to the Supreme Court, he asked the justices to pause proceedings until he’s back in the White House on January 20, which is unlikely.)
The legislation singles out TikTok by name as a “foreign adversary controlled application” because of its Chinese parent company, ByteDance. The government argues that this ownership structure ultimately makes TikTok “subject to the control of the People’s Republic of China” and thus poses “grave national-security threats.” TikTok strenuously rejects this characterization, telling the Supreme Court in its brief that “the Government seeks to prophylactically silence” its more than 170 million users in the U.S. “based on fear that China could someday wield control over [TikTok’s] foreign affiliates.”
Under the law, unless ByteDance sells TikTok by January 19, it will be illegal for third-party vendors like Apple or Google to distribute or maintain the app.
TikTok vowed to challenge the law as unconstitutional, and it filed a federal lawsuit last May, as did a group of TikTok creators. The U.S. Court of Appeals for the D.C. Circuit sided with the government in early December.
“We recognize that this decision has significant implications for TikTok and its users,” wrote Judge Douglas H. Ginsburg, noting that if ByteDance didn’t divest from TikTok, “its platform will effectively be unavailable in the United States, at least for a time.”
TikTok and the creators petitioned the Supreme Court for emergency review, which was quickly granted to squeeze in oral arguments less than two weeks before the sale deadline.
The TikTok case is a battle of framing. By the government’s argument, the ban doesn’t implicate the First Amendment at all, because ByteDance is a foreign company without constitutional rights, and the legislation doesn’t regulate speech on TikTok directly — only who can own and control the platform itself.
“TikTok may continue operating in the United States and presenting the same content from the same users in the same manner if its current owner executes a divestiture that frees the platform from the PRC’s control,” the Biden administration wrote in its brief defending the law. “And TikTok users likewise have no First Amendment right to post content on a platform controlled by a foreign adversary.”
The D.C. Circuit ruled that the First Amendment does apply, rejecting the government’s argument to the contrary, which the judges deemed “ambitious.” ByteDance’s U.S.-based subsidiary, TikTok, Inc., has First Amendment rights, the court held, and “the curation of content on TikTok is a form of speech” under a unanimous Supreme Court decision from last summer.
The three-judge panel — a cross-ideological crew composed of Ginsburg, a Reagan appointee; Chief Judge Sri Srinivasan, an Obama nominee; and Judge Neomi Rao, a Trump nominee — found, however, that the TikTok ban didn’t violate the First Amendment, even under the highest level of constitutional scrutiny.
“The Government has offered persuasive evidence demonstrating that the Act is narrowly tailored to protect national security,” Ginsburg wrote. In a concurring opinion, Srinivasan wrote that the TikTok ban was “in step with longstanding restrictions on foreign control of mass communications channels,” such as radio.
The D.C. Circuit’s deference to national security arguments alarmed civil liberties advocates, since the government has acknowledged that TikTok’s potential geopolitical risks to the U.S. are, at least for now, hypothetical.
“Affirming the lower court’s holding would signal a sea change,” argued a group of prominent First Amendment and internet law scholars in a brief, “namely, that the Government need offer only ambiguous evidence and conjecture to support the suppression of free and controversial speech.”
TikTok hawks have offered two primary risk vectors: foreign surveillance and covert influence. Like many websites and apps, TikTok collects a significant amount of data on users — and the company has previously been caught dipping into the data, including to track journalists’ movements and smoke out corporate leakers. The fear is that the Chinese government might access this data too, which could facilitate mass monitoring, blackmail, and espionage against the U.S., as then-hawk Trump wrote in an executive order in 2020.
The government also warns that the Chinese government might leverage TikTok for influence operations targeted at Americans by ordering TikTok to tweak its recommendation algorithm or to censor certain content.
There is no evidence in the public record that the company has coordinated with the Chinese government in either way against the United States. But the D.C. Circuit deferred explicitly to the government’s national security arguments, citing a 2010 decision of the Supreme Court about material support for terrorism, writing that the assessments of the executive branch and Congress about TikTok’s risks were “entitled to significant weight.”
“The list of countries that have banned TikTok should itself be a warning because these countries do not share American commitments to a free and open internet.”
Where the Supreme Court will land is difficult to predict. In the past decade, the court has consistently recognized the importance of protecting online speech, albeit in cases lacking a national security veneer.
But critics worry that allowing a sweeping ban based on predictions rather than more concrete proof of TikTok’s security risks sets a precedent in line with repressive regimes, including, ironically, China.
“The list of countries that have banned TikTok should itself be a warning because these countries do not share American commitments to a free and open internet,” wrote the Knight First Amendment Institute at Columbia University in a brief to the Supreme Court joined by Free Press and PEN America.