Dear Commons Community,

The U.S. Supreme Court ruled to uphold a law that forces TikTok to divest its Chinese ownership to avert a nationwide ban set to take effect on Sunday, in an opinion issued yesterday.

“There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the opinion reads.

“But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary. For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights,” it continues. 

All nine justices had appeared skeptical of TikTok’s argument that the law violates the First Amendment rights of the platform and its user base of over 170 million Americans during the hearing last week.  As reported by the Huffington Post.

“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Chief Justice John Roberts asked.

TikTok has faced scrutiny for years over its ties to China despite its efforts to dampen concerns.

President Joe Biden in April signed the law that required ByteDance to sell the U.S. assets of TikTok or see the platform be removed from app stores in the U.S. on Jan. 19, a day ahead of President-elect Donald Trump’s Inauguration. However, Biden this week signaled he will not enforce the ban, handing over the issue to Trump.

White House press secretary Karine Jean-Pierre appeared to confirm Biden’s position.

“Given the sheer fact of timing, this Administration recognizes that actions to implement the law simply must fall to the next Administration, which takes office on Monday,” she said in a statement.

In a post on his Truth Social platform, Trump conceded “the decision was expected, and everyone must respect it.”

“My decision on TikTok will be made in the not too distant future, but I must have time to review the situation,” he said. “Stay tuned!”

Trump did not share any further details on his plan for the platform’s future in the U.S.

The president-elect has reportedly already been exploring possible ways to undo the legislation, including via an executive order, according to The Washington Post. The move, though, would stand on shaky legal ground, the outlet explained.

Trump, who tried to ban TikTok during his first term in office, has since had a change of heart and recently called on the Supreme Court to stay implementation of a potential ban to allow him to pursue a “political resolution” to the issue at hand.

But TikTok’s prospects in the U.S. have looked dim for some time now.

TikTok sued the U.S. federal government shortly after Biden signed the legislation into law, describing it as unconstitutional.

A federal appeals court last month ruled against TikTok, and later also denied the company’s request to delay enforcement of the legislation, before the Supreme Court announced it would review the case.

The Supreme Court’s opinion upheld that federal appeals court decision by rejecting arguments made by TikTok and content creators on the platform that the law violated their First Amendment right to free speech.

Much of the ruling centered on whether the law forcing a TikTok sale from ByteDance directly impinged on the free speech rights of the company and users. The high court determined that, while the law did prompt free speech concerns, it ultimately could stand because it targeted speech in a “content-neutral” manner and provided non-content-based rationales.

“It is not clear that the Act itself directly regulates protected expressive activity, or conduct with an expressive component,” the court said. “Indeed, the Act does not regulate the creator petitioners at all. And it directly regulates ByteDance Ltd. and TikTok Inc. only through the divestiture requirement.”

Crucially, legislators backing the law cited data protection and national security as their chief rationales for supporting it.

“Data collection and analysis is a common practice in this digital age,” the high court said. “But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”

The U.S. government argued that the Chinese government has a long history of obtaining extensive information on U.S. citizens through illegal means ― including hacks of the Office of Personnel Management and the credit-scoring company Equifax ― and that TikTok’s data collection practices presented China with another opportunity to build detailed profiles of U.S. citizens that could be used for espionage, blackmail or recruitment in the future.

The court did not consider the potential threat of content manipulation on TikTok that the U.S. government provided as another justification for the law alongside its concerns about data protection. In a concurrence, Justice Neil Gorsuch noted that “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’”

He added, “It makes no difference that Americans (like TikTok Inc. and many of its users) may wish to make decisions about what they say in concert with a foreign adversary.”

ByteDance has long said it has no plans to sell the U.S. assets of its platform despite the fact that at least one U.S. buyer has formally declared interest.

Project Liberty, an organization founded by billionaire Frank McCourt, the former owner of the Los Angeles Dodgers, and its partners, including “Shark Tank” investor Kevin O’Leary, have made a formal bid to acquire the U.S. assets of the platform.

In a message posted to the platform following the decision, TikTok CEO Shou Zi Chew praised Trump “for his commitment to work with us to find a solution that keeps TikTok available in the United States.” Chew’s statement indicated that the company does not plan to shut down the platform on Jan. 19 as previously promised.

We do not get many unanimous U.S. Supreme Court decisions!.

Tony