TikTok: To Ban or Not to Ban: A Threat to Free Speech

On January 17, 2025, the Supreme Court in TikTok Inc. v. Garland[1] upheld the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”),[2] effectively banning TikTok in the United States unless its Chinese parent company, ByteDance,[3] sells its American operations.[4]  This decision impacts over 170 million Americans and presents a significant threat to their First Amendment rights.[5]

In 2024, Congress passed the Act to address national security concerns.[6]  The Act prohibits platforms, like the App Store, from distributing, maintaining, or providing internet hosting services[7] for any app controlled by a foreign adversary[8] within the United States, including TikTok.[9]  Since 2020, United States officials have warned that TikTok poses a national security threat, citing concerns that the Chinese government could exploit user data[10] to manipulate public opinion through misinformation and disinformation—fears heightened by ongoing tensions between the United States and China.[11] 

However, national security often conflicts with other fundamental rights, such as the First Amendment’s protection of free speech.[12]  The First Amendment states that: “[c]ongress shall make no law … abridging the freedom of speech,”[13] ensuring individuals can express opinions and share information freely across any platform.[14]  The TikTok ban epitomizes this tension.

Two TikTok operating entities and a group of TikTok users challenged the Act, arguing that it violates TikTok’s and 170 million Americans’ First Amendment rights.[15]  The case was heard by the U.S. Court of Appeals for the D.C. Circuit, which ultimately upheld the Act and rejected TikTok’s constitutional claims.[16]  The Supreme Court granted certiorari and agreed with the lower court’s ruling, determining that national security concerns outweighed TikTok’s First Amendment claims.[17]  The Supreme Court analyzed the Act under intermediate scrutiny[18] and concluded that the government met its burden, citing an “important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users.”[19] 

However, the Supreme Court applied the wrong level of scrutiny and disregarded key facts.  The Department of Justice (“DOJ”) claims the Act serves two purposes: preventing the Chinese government from secretly influencing the content Americans see on TikTok and blocking its access to user data.[20]  However, the DOJ has admitted there is no actual proof that China is covertly manipulating TikTok’s content in the United States.[21]  This lack of evidence exposes the government’s rationale for banning TikTok as pretextual, a mere attempt to restrict speech it disapproves of.[22] 

As the attorneys for TikTok argued in its petitioner’s brief, banning an entire platform—along with its content curation and algorithmic recommendations—restricts protected expression used by millions.[23]  Such a drastic action demands strict scrutiny, which the Supreme Court failed to apply.[24]  The government did not prove a compelling interest or show the ban was narrowly tailored, relying instead on speculation.[25]  By not holding the government to this standard, the Court undermined core First Amendment protections.[26]

Supporters of the ban, including DOJ and members of Congress, argue that TikTok users’ First Amendment rights are not being jeopardized because they can simply move to other platforms like Instagram or X.[27]  This solution ignores the unique role TikTok plays, as it offers a completely different user experience from other platforms.[28]  TikTok’s format, algorithm, and community have created a space for creativity, self-expression, and lucrative business opportunities that one does not get on Instagram or X.[29]  Its powerful algorithm is central to this distinction, curating content in a way that amplifies diverse voices and fosters a dynamic, algorithm-driven public forum, unlike the follower-based models of Instagram or X.[30]  Furthermore, TikTok has become a key platform for many people to reach vast audiences and generate income.[31]  The issue is not just about finding another platform—it is about losing access to a unique public forum relied upon by millions.[32] 

The Court should have found that the plaintiffs’ First Amendment rights outweigh the government’s speculative national security concerns, particularly when alternative measures, like Project Texas,[33] could address data security risks without suppressing free speech.[34]  Banning TikTok sets a dangerous precedent, endorsing overly broad restrictions that infringe on Americans’ First Amendment rights.[35]

Following the Court’s decision, TikTok’s future remains uncertain.[36]  The nationwide ban took effect on January 19, 2025, blocking downloads and penalizing internet providers for allowing access.[37]  However, President Trump signed an executive order the next day, pausing the ban for seventy-five days to allow his administration time to review the situation.[38]  By February 14, 2025, TikTok returned to app stores, but without a sale, Americans remain in limbo, waiting for the administration’s decision.[39]

The TikTok ban is a clear violation of every American’s First Amendment rights, and the Supreme Court unquestionably got this decision wrong.  As Jenna Leventoff, senior policy counsel at the ACLU, stated, “[t]aking away Americans’ free speech rights does not make us safer; it endangers our democracy.”[40]  Silencing a platform that unites and amplifies millions of voices threatens the very foundation of free speech —a right deeply embedded in the Constitution.[41]  With the seventy-five-day deadline quickly approaching and the First Amendment rights of 170 million Americans hanging in the balance, the answer is clear: TikTok must not be banned, and First Amendment rights must be protected.

[1] TikTok Inc. v. Garland 220 L. Ed. 2d 319 (2025).

[2] H.R. 7521, 118th Cong. (2024).

[3] See ByteDance, Bʀɪᴛᴀɴɴɪᴄᴀ, https://www.britannica.com/topic/ByteDance (last updated Mar. 6, 2025) [https://perma.cc/BUL4-JXCY]. ByteDance was founded in 2012 by Zhang Yiming and Liang Rubo. In 2017, the company bought Musical.ly and merged it with TikTok the following year.  Id.

[4] See Amy Howe, Supreme Court Upholds TikTok Ban, SCOTUSʙʟᴏɢ (Jan. 17, 2025), https://www.scotusblog.com/2025/01/supreme-court-upholds-tiktok-ban [https://perma.cc/PQ9B-3YUW]; see also André Rhoden-Paul, US Supreme Court Upholds TikTok Ban Law, BBC (Jan. 17, 2025), https://www.bbc.com/news/articles/c3e18qylq5do [https://perma.cc/U369-H5DU]. The option to sell TikTok was introduced as an alternative, underscoring that the Supreme Court’s primary concern was its Chinese ownership. The implication was that if American companies took control, they could more effectively address security risks.  Id.

[5] See Jenna Leventoff & Patrick Toomey, ACLU Slams Supreme Court TikTok Ruling, ACLU (Jan. 17, 2025), https://www.aclu.org/press-releases/aclu-slams-supreme-court-tiktok-ruling [https://perma.cc/6Q7L-86PH].

[6] Id.; see also Caitlin Yilek, Why U.S. Officials Want to Ban TikTok, CBS Nᴇᴡs, https://www.cbsnews.com/news/tiktok-ban-congress-reasons-why (last updated April 24, 2024) [https://perma.cc/SQX2-G9LH].

[7] H.R. 7521 § 2 (5) (“The term “internet hosting service” means a service through which storage and computing resources are provided to an individual or organization for the accommodation and maintenance of 1 or more websites or online services, and which may include file hosting, domain name server hosting, cloud hosting, and virtual private server hosting.”).

[8] Id. at § 2 (4) (“The term “foreign adversary country” means a country specified in section 4872(d)(2) of title 10, United States Code.” In this context, it refers explicitly to China.).

[9] Id. at § 2 (a)(1).

[10] See William L. Jeunesse, Here’s the Data That TikTok Collects on its Users, Fᴏx Bᴜs. (Mar. 22, 2023), https://www.foxbusiness.com/technology/heres-data-tiktok-collects-its-users [https://perma.cc/D426-JXZP].  The data being collected includes user profile information, device information, location data, and usage data.  Id.

[11] See Alexander Paykin, A TikTok Ban: The First Amendment Implications Should not be Underestimated, NYSBA (Aug. 26, 2024), https://nysba.org/a-tik-tok-ban-the-first-amendment-implications-should-not-be-underestimated [https://perma.cc/NTB9-TTQD].

[12] Id.

[13] U.S. Cᴏɴsᴛ. Aᴍᴇɴᴅ. 1.

[14] See Paykin, supra note 11.

[15] TikTok Inc. v. Garland, 122 F.4th 930, 941-942 (D.C. Cir. 2024).

[16] See Id. at 949.

[17] TikTok Inc. v. Garland 220 L. Ed. 2d 319, 332 (2025); see also H.R. 7521, 118th Cong. (2024).

[18] Id. at 333. Intermediate scrutiny is a legal standard that courts use to determine if laws are constitutional.  Id.  For a law to be deemed constitutional, the government bears the burden of proving the law served a substantial government interest and was narrowly tailored to that purpose. Id.

[19] TikTok Inc. v. Garland 220 L. Ed. 2d 319, 332 (2025).

[20] See Ashley Gorski & Patrick Toomey, Banning TikTok is Unconstitutional. The Supreme Court Must Step In., ACLU (Jan. 15, 2025), https://www.aclu.org/news/national-security/banning-tiktok-is-unconstitutional-the-supreme-court-must-step-in [https://perma.cc/6GXL-Z968].

[21] See Content Based Regulation, Lᴇɢᴀʟ Iɴғᴏ. Iɴsᴛ, https://www.law.cornell.edu/constitution-conan/amendment-1/content-based-regulation (last visited Mar. 13, 2025) [https://perma.cc/Z4S8-ETTY]; see also Gorski & Toomey, supra note 20.

[22] See Government Restraint of Content of Expression, Jᴜsᴛɪᴄᴀ, https://law.justia.com/constitution/us/amendment-01/16-government-restraint-of-content-of-expression.html (last visited Mar. 13, 2025) [https://perma.cc/3RKL-AC9K].

[23] Brief for Petitioners at 18, TikTok Inc. v. Garland 220 L. Ed. 2d 319 (2025) (No. 24-656).

[24] Id. at 18-19.

[25] Id. at 19.

[26] See Content Based Regulation, supra note 21; see also Gorski & Toomey, supra note 20.

[27] Id.

[28] See generally Aparajita Bhandari & Sara Bimo, Why’s Everyone on TikTok Now? The Algorithmized Self and the Future of Self-Making on Social Media 8 Soc. Mᴇᴅɪᴀ + Sᴏᴄ’ʏ J. 1 (Jan. 2022).

[29] Id.

[30] See Allison Stanger, The Difference Between TikTok and Free Expression, Tʜᴇ Aᴛʟᴀɴᴛɪᴄ (Jan. 19, 2025), https://www.theatlantic.com/ideas/archive/2025/01/difference-between-tiktok-and-free-expression/681375 [https://perma.cc/3EPF-69QN].

[31] See Kristen Bousquet, 8 Strategies To Make Money On TikTok, Fᴏʀʙᴇs (May 12, 2024), https://www.forbes.com/sites/entertainment/article/how-to-make-money-on-tiktok [https://perma.cc/B7J7-U4HY].  Individuals generate revenue on TikTok through various avenues: sponsored content and partnerships, affiliate partnerships, TikTok Shop, user-generated content, TikTok Creator Fund, creating and selling merchandise, and digital products and services.  Id.

[32] See generally Jack Shepard, 25 Essential TikTok Statistics You Need to Know in 2025, Sᴏᴄ. Sʜᴇᴘʜᴇʀᴅ, https://thesocialshepherd.com/blog/tiktok-statistics (last updated Jan. 1, 2025) [https://perma.cc/ZD5P-4G53].

[33] See Paykin, supra note 11. Project Texas is TikTok’s initiative to address U.S. national security concerns by storing American user data on domestic servers managed by Oracle, along with implementing strict oversight measures to prevent foreign access.  Id.

[34] See Max Zahn, No Evidence of TikTok National Security Threat but Reason for Concern, Experts Say, ABC Nᴇᴡs (Mar. 28, 2023), https://abcnews.go.com/Technology/evidence-tiktok-national-security-threat-reason-concern-experts/story?id=98149650 [https://perma.cc/Z86B-HMNP].

[35] See Leventoff & Toomey, supra note 4.

[36] See Antonio Pequeño & Mary W. Roeloffs, TikTok Ban Timeline: TikTok Returns to U.S. App Stores- For Now, Fᴏʀʙᴇs (Feb. 14, 2025), https://www.forbes.com/sites/antoniopequenoiv/2025/02/14/tiktok-ban-timeline-tiktok-returns-to-us-app-stores-for-now [https://perma.cc/9JXR-M3FR].

[37] Id.

[38] See Exec. Order No. 14166, 90 Fed. Reg. 8611 (Jan 20. 2025).

[39] See Pequeño & Roeloffs, supra note 35.

[40] Leventoff & Toomey, supra note 5.

[41] Id.; see also U.S. Cᴏɴsᴛ. Aᴍᴇɴᴅ. 1.