How the Supreme Court’s TikTok Ban Decision Could Weaken Free Speech Rights For Everyone

On Friday, the Supreme Court will hear consolidated oral arguments in TikTok v. Garland and Firebaugh v. Garland, the two cases challenging the Protecting Americans from Foreign Adversaries Controlled Applications Act—or, as it’s more commonly known, the TikTok ban. Critics, including me, have charged that the law, which Congress passed on a bipartisan basis in 2024, has major First Amendment infirmities; this week’s argument will shed light on whether the justices agree. 

But even those who think the Court should uphold the TikTok ban should have concerns about what a broad ruling for the government would mean for free speech rights and the limits of national security justifications. The strength of the First Amendment theoretically ensures that vague fears of national security threats should never lead to the effective shutdown of a vital communications platform. Yet given the Court’s historic credulity towards national security claims—as anyone who recalls Trump v. Hawaii knows too well—that may well occur in just a few weeks.

First, a recap. In his first term, President Donald Trump attempted to ban TikTok via executive order, claiming that it posed a national security risk because of its extensive Chinese operations. TikTok has a fully American subsidiary, but its parent company, ByteDance, has its headquarters in China. In theory, the Chinese government could mandate that ByteDance provide it access to the company’s data, given China’s regulatory requirements regarding data sharing and data security. But to be clear, the federal government has not publicly disclosed any compelling evidence that these requirements have actually implicated American user data.

Given that millions of Americans use the social media platform, critics (most prominently, American legislators) alleged that TikTok possessed a vast trove of information about Americans, potentially giving the Chinese government the ability to obtain sensitive data. And critics also suggested that the popular nature of the TikTok platform, and the company’s power to shape the content that users view, could allow for covert content manipulation by the Chinese government targeting American users. Then-Representative Mike Gallagher, a Republican and one of the lead proponents of the ban, called the app “digital fentanyl”; to explain his support for a ban, Missouri Senator Josh Hawley alleged that the app promotes pro-Palestinian content. Although legislators asserted that secret briefings persuaded them that TikTok poses a national security threat, again, whatever evidence they saw has never come to light. The public has no idea of its persuasive power; we must merely take Congress at its word.

Similarly, the executive branch—under both Presidents Trump and Biden—has declined to release any information that would meaningfully validate its fears about TikTok’s Chinese connections. Courts blocked Trump’s executive order banning the app on First Amendment grounds in 2020, and Biden rescinded it upon entering office in 2021. The Biden administration began negotiating with TikTok to develop a structural solution to insulate user data from potential misuse or manipulation by the Chinese government. But after months of unproductive discussions, Congress passed a law mandating TikTok’s American subsidiary to separate from ByteDance by January 19, 2025. 

Absent a divestiture, any app stores that distribute TikTok after January 19 will violate federal law. While the TikTok app won’t blink off users’ phones, updates will cease and the user experience will probably degrade over time, making the app functionally unusable. 

ByteDance claims that it cannot, as a technical matter, divest TikTok US to a seller given the international structure of the app; moreover, the Chinese government has signaled that it would block a sale under its domestic regulations. Unless something unexpected happens, two weeks from now the U.S. government will have facilitated the effective shutdown of a major platform for individual speech used by an estimated 100 million Americans each month.

My longstanding concerns with the TikTok ban led me to sign on two amicus briefs supporting the company’s First Amendment challenges in the U.S. Court of Appeals for the D.C. Circuit and in the Supreme Court. I’m not particularly enamored of the company, and have never signed up for an account. I already am way too active on social media, and the app’s reputation for preternatural awareness of what users want to watch has always unsettled me. But I find the implications of upholding this law even more disturbing. Taken to the extreme, the justifications for banning TikTok could allow generic, unspecified national security “concerns” to support restricting other forms of media, regardless of their ownership.

In its briefing, the federal government claims that the TikTok ban does not violate the First Amendment and in fact does not even trigger First Amendment scrutiny, as it merely regulates conduct with no meaningful effect on speech. The conduct/speech distinction has a long history in First Amendment law. It explains why, for example, the government can prosecute a defendant for murdering someone for political reasons, even if the defendant claims that they had a free speech interest in committing the crime. 

But a three-judge panel in the U.S. Court of Appeals for the District of Columbia Circuit rightly rejected the government’s argument, finding that the law does in fact regulate speech rather than conduct. Because the panel held that the First Amendment applies to this statute, one would assume that the appeals court would treat the ban skeptically. Unfortunately, it didn’t.

Here is where the D.C. Circuit, in my view, went wrong: After determining that the ban implicates the First Amendment, the court held that it nonetheless satisfies strict scrutiny, the most stringent test in constitutional law. Laws subject to strict scrutiny can survive only if they are “narrowly tailored” to achieve a “compelling government interest,” and by the least restrictive means possible. The D.C. Circuit—a three-judge panel featuring appointees of Presidents Ronald Reagan, Barack Obama, and Donald Trump—rested that conclusion on the “national security concerns” that the government proffered, largely in secret without any meaningful public airing of the evidence. Even in its Supreme Court filings, the government still invokes classified information in justifying its position.

To my mind, even a broad reading of Holder v. Humanitarian Law Project, the most relevant First Amendment/national security case in which the Court upheld a statute under strict scrutiny, should not permit such deferential treatment of the government’s claims—especially given the severity of the result here. A law of general applicability that applied to all social media companies, rather than singling out one, would stand on stronger ground; so too would a law that cited publicly available information to justify the national security claims. But to treat this law so deferentially despite its facial inadequacies undermines core constitutional protections for free speech.

And of course, shutting down TikTok’s domestic operations does not merely harm the company’s First Amendment interests. Creators and users who share information on the platform will lack the ability to communicate throughout the network in just a couple weeks, if the government gets its way. Arguing, as the government does, that users could simply use another platform ignores the very meaningful differences among social media platforms (as any current user of X can tell you, each platform has its own gestalt). Reminding users that they can post their front-facing camera videos on Instagram Reels doesn’t do much to validate their free speech rights.

That said, many observers (including me) think TikTok faces an uphill battle. A bipartisan, cross-ideological belief has emerged that the TikTok ban remains a necessary, prudent intervention to protect the homeland. While free speech claims often prevail when litigated by powerful corporations in front of sympathetic deregulatory judges, in some areas (like criminal law or immigration) courts prefer to defer to the political branches rather than deign to enforce the Constitution. Sadly, national security remains one of those First Amendment-free zones in which judges would rather not scrutinize too closely what the government does, lest they take the blame if they make the wrong call.

The ridiculously swift schedule in this case also bodes ill for a carefully reasoned opinion. Because the statute allowed for expedited review immediately in the D.C. Circuit, unlike most federal cases, there were no district court proceedings and thus no well-developed record below. TikTok filed for review on December 16; the Court granted its petition on December 18 and set initial briefs for filing on December 27, with oral argument scheduled for this coming Friday. That speedy timeline unfortunately means that the complex issues at play here may not get the thoughtful attention they deserve.

Although I suspect that the company will lose, I fear that a sloppy ruling from the Court could leave the door open for future federal action to limit the constitutional rights of people who are saying or doing things the government doesn’t like. If the government can shut down a communications platform merely by uttering the magic words “national security,” the First Amendment will end up an effective dead letter when it comes to protecting free speech online.