Takeaways from the Supreme Court’s TikTok decision and what it may mean for the First Amendment

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The Supreme Court’s remarkably quick decision Friday to allow a controversial TikTok ban to take effect will have a huge impact on the tens of millions of Americans who use the app every day and broad political implications for President-elect Donald Trump.

But the court’s unsigned opinion and two concurrences also revealed deeper divisions on the court over how the First Amendment applies to social media.

The high court, which has generally sided with First Amendment interests for decades, brushed aside concerns raised by TikTok about its ban on trampling on free speech rights. The court also quickly dismissed concerns raised by the Biden administration about the possibility of covert content manipulation by the Chinese government.

First Amendment groups that support TikTok warned that the ruling could have deeper ramifications.

“Make no mistake, by allowing the ban to go into effect, the Supreme Court has weakened the First Amendment and markedly expanded the government’s power to restrict speech in the name of national security,” said Jameel Jaffer, executive director of the Institute. Knight of the First Amendment. “Its implications for TikTok may be limited, but the ruling creates space for other repressive policies in the future.”

The ruling came days after the justices heard oral arguments in another major First Amendment case challenging a Texas law requiring age verification for porn sites. In that case, the majority of judges were inclined to uphold the law.

These are some key points from the Supreme Court ruling in the TikTok case:

Glimpsed in the 27 pages released by the court on Friday is a looming debate over the First Amendment and whether it applies to the law at all.

That debate has already emerged in some cases on social media, and it is very likely that it will arise again. Part of that question is whether the curation of content on social media, such as the design of a news organization’s website, is protected speech or whether the distribution of videos to users based on an algorithm is something else entirely.

The judges who signed the opinion per curiam The court debated whether the law is subject to First Amendment review since it does not directly regulate content posted by app users. Instead, the court adopted the idea that the law targets TikTok and its China-based parent company, ByteDance, through the divestiture provision.

In other words, the court reasoned, the law has nothing to do with censoring cat videos on TikTok. It is about forcing a large company to cut ties with a foreign adversary.

“It is not clear that the law itself directly regulates protected expression activity, or conduct with an expressive component,” the opinion said.

Still, the court acknowledged that over the years it has not provided clear guidance on how the law treats a situation in which a law directed, for example, at foreign ownership of a company, indirectly affects the content that the company public company.

But the TikTok case, the court said, was not the vehicle to break new ground in the First Amendment sphere. Instead, the court raised the question and then refused to answer it.

“We assume without deciding that the challenged provisions…are subject to First Amendment scrutiny,” the opinion said.

That assumption was deemed wholly inadequate by Justice Sonia Sotomayor, who wrote in a brief concurring opinion that she agreed with all but that part of the court’s legal reasoning. It is clear, Sotomayor said, that the First Amendment was implicated in the TikTok case.

“I see no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does,” the court’s oldest liberal justice wrote.

Pointing to social media cases the court decided last year that dealt with content hosted on the platforms, Sotomayor said that “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform.”

In those cases, which concerned laws enacted by Florida and Texas that sought to ensure that conservative opinions were not strangled on social media, the court majority said that social media curation decisions were expressive activity, although that was not central to the court’s decision.

The Biden administration had made two national security arguments to defend the TikTok ban. The first was that China could access user information, including private messages and videos viewed, which it could use for “espionage or blackmail.”

National security experts also warned that China could covertly manipulate TikTok content, either to promote the government’s point of view or to sow discord during a crisis.

In its decision, the Supreme Court focused almost entirely on data collection. That allowed the court to focus largely on an issue that did not involve potential First Amendment protection.

“The platform collects a large amount of personal information from and about its users,” the court’s unsigned opinion says.

TikTok “does not dispute that the government has a significant and well-founded interest in preventing China from collecting the personal data of tens of millions of American TikTok users,” the court wrote. “Neither could they.”

Data collection, the court acknowledged, is a common practice in the digital age.

“But TikTok’s scale and its susceptibility to control by foreign adversaries, along with the vast swaths of sensitive data the platform collects, justify differential treatment to address the government’s national security concerns,” the opinion noted.

For decades, the Supreme Court has leaned toward First Amendment protections in a way that has blurred the conservative-liberal divide that often determines high-profile culture war cases.

But this week, the justices appeared to move in the other direction.

In addition to rejecting TikTok’s challenge to the ban on First Amendment grounds, the court also indicated that it might be willing to reject another challenge regarding obscenity.

A majority of the justices noted Wednesday that Texas can afford to require some form of age verification for porn sites, despite the adult entertainment industry’s argument that the law would limit adults’ ability to access free speech. protected.

Chief Justice John Roberts repeatedly suggested that the Court might consider reviewing precedents protecting obscenity on the Internet.

“Technological access to pornography has obviously exploded,” Roberts said. “It was very difficult for 15-year-olds … to access the kinds of things that are available at the touch of a button today.”

Is rethinking the court’s approach something “we should at least consider rather than maintaining a structure that was accepted and established in a completely different era?” Roberts questioned.

It’s unclear what will happen to TikTok on Sunday.

Experts initially expected it to at least be removed on Sunday from the app stores of Apple and Google, which could face fines for continuing to host TikTok after the deadline. TikTok has gone a step further in recent days, suggesting that it could “disappear” even for those who have already downloaded the app without intervention from the Supreme Court.

Although the law has not changed, the political winds have definitely changed.

Trump, who will be sworn in on Monday, has vowed to save the app. The White House, for its part, said Friday that enforcing the law “will be up to the next administration.”

All of that could leave it up to TikTok and the app stores to decide how to assess the changing landscape.

– CNN’s Tierney Sneed contributed to this report.