The Supreme Court upheld the US TikTok ban. What does that mean for free speech protections?

The nine-month legal battle between ByteDance—the Chinese company that owns TikTok—and the United States government ended in a win for the government on January 17, 2025, when the US Supreme Court issued a decision in TikTok, Inc. v. Garland that upheld the ban passed by Congress. Under the Protecting Americans from Foreign Adversary Controlled Applications Act, the social media company must cease operations in the US by January 19, 2025, unless sold to a new owner.

TikTok and its parent company, ByteDance, had argued the law violated Americans’ First Amendment free speech rights. The United States government, however, contended that data collection by TikTok represents a threat to national security and that the law does not seek to regulate TikTok’s speech.

To legal scholars like Christopher Jon Sprigman, Murray and Kathleen Bring Professor of Law at NYU’s School of Law, the decision renews alarm around the deprioritization of free speech protections and the future of social media regulation by Congress and in federal courts. Late last year, Sprigman joined 34 other legal scholars in filing an amicus brief that outlined these concerns to the Supreme Court.

“The focus of the amicus brief was to describe the TikTok law for what it was—a gigantic speech restriction, unredeemed by any demonstrated compelling justification and not narrowly tailored to minimize the speech harm,” said Sprigman.

Sprigman spoke with NYU News to discuss the ban in a First Amendment context, the likely impact for American TikTok users, and what this decision means for the future of social media regulation.

You joined 34 other legal scholars specializing in internet law and First Amendment law to file an amicus brief for this review. What drew you to this case?

The government is engaged in a major restriction of speech rights here based on a supposed national security justification. But the government has made public almost no evidence supporting its concerns. Nor has it explained why a forced divestiture, which—if it is not done will lead to a ban—is necessary as opposed to some less restrictive approach, including the “Project Texas” approach that TikTok itself put forward.

Project Texas was a program which, among other things, would put US user data and content moderation within a US-based subsidiary, and put that subsidiary under the supervision of US tech giant Oracle. These steps were designed to keep both user data and content out of the hands of the Chinese government. The government basically ignored the proposal.

In the amicus brief, we argued that review of the content and viewpoint purposes underlying the act requires the application of strict scrutiny with the presumption that the act is unconstitutional. The lower court did not do so. The lower court’s scrutiny was strict in theory, but lax in fact. It allowed the act to stand based on the risk that TikTok could be used by the PRC to gather information and manipulate content. The government provided no specific intelligence to substantiate its concerns that TikTok could be so used and the lower court did not cite any such evidence. There was also no evidence showing that these threats were particularly imminent or that any threats could not be better handled through less restrictive alternatives, such as a negotiated mitigation agreement.

What makes this case an issue of free speech, rather than the more narrow question of national security risk?

The government itself said this case is about speech. One of the government’s rationales for the act—to limit the People’s Republic of China’s (PRC) ability to manipulate content covertly on the TikTok platform—is stating an express speech restriction, on which is both content and viewpoint-based. In other words, it seeks to suppress pro-PRC speech.

The government is arguing that ByteDance, the owner of TikTok, is acting as publisher of TikTok because it owns and uses an algorithm that can make recommendations to users. Isn’t that true for all social media platforms? What do you make of this argument?

The argument proves too much, as you suggest. And it would suggest that the government has a wide-ranging power to regulate speech on internet platforms, or indeed on broadcast platforms, if it makes a determination that such speech raises national security concerns—and that it need not offer much, or any, public evidence supporting that determination.

How is this case different from previous efforts to regulate social media content and publishers?

There has never been any attempt to force the divestiture of a social media platform. The other major attempts to regulate social media content were the lamentable Texas and Florida laws that sought to cripple large platforms’ content moderation activities, in order to prevent—mostly mythical—discrimination against right-wing viewpoints. 

The Texas and Florida laws, the constitutionality of which the Supreme Court recently cast into serious doubt in its opinion in Netchoice, not only harm social media platforms’ own speech and associational interests, but the speech and association interests of communities of citizens online.

What will this ban mean for the future of social media regulation?

The court has basically told other platforms that they shouldn’t worry, but the ways in which the Court has decided to distinguish TikTok are so weak that other platforms probably should actually worry. By allowing the TikTok ban to be upheld because of unique data capturing, the court is constructing a world that doesn’t exist. The data capturing done by TikTok looks a lot like data capturing on other platforms that people use on the internet. Users’ personal information is often collected, and depending on the terms of service of the site, it could be sold or transferred to third parties that may not hold it securely. This means that foreign adversaries can still get access to that data by stealing or buying it.

It’s hard to say if the court is being naive, or getting the result they want by putting TikTok in its own class—but they’re wrong.

On January 20, President Trump issued an executive order in an effort to override the law, which was passed by Congress and signed by President Biden in April 2024. But Constitutional law experts have noted that a federal law cannot be overridden by an executive order, leaving the platform's status uncertain.