Supreme Court upholds the TikTok ban.

Opinion here.

Per curiam. Sotomayor concurs, but let's read the Gorsuch opinion, concurring:

We have had a fortnight to resolve, finally and on the merits, a major First Amendment dispute affecting more than 170 million Americans.... Given those conditions, I can sketch out only a few, and admittedly tentative, observations. 

First, the Court rightly refrains from endorsing the government’s asserted interest in preventing “the covert manipulation of content” as a justification for the law before us. Brief for Respondent 37. One man’s “covert content manipulation” is another’s “editorial discretion.” Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them. Without question, the First Amendment has much to say about the right to make those choices. 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. 

“Those who won our independence” knew the vital importance of the “freedom to think as you will and to speak as you think,” as well as the dangers that come with repressing the free flow of ideas. Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). They knew, too, that except in the most extreme situations, “the fitting remedy for evil counsels is good ones.” Ibid. Too often in recent years, the government has sought to censor disfavored speech online, as if the internet were somehow exempt from the full sweep of the First Amendment. See, e.g., Murthy v. Missouri, 603 U. S. 43, 76–78 (2024) (ALITO, J., dissenting). But even as times and technologies change, “the principle of the right to free speech is always the same.” Abrams v. United States, 250 U. S. 616, 628 (1919) (Holmes, J., dissenting).  

Second, I am pleased that the Court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel. Ante, at 13, n. 3. Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.... [W]e have no business considering the government’s secret evidence here. 

Third, I harbor serious reservations about whether the law before us is “content neutral” and thus escapes “strict scrutiny.”... More than that, while I do not doubt that the various “tiers of scrutiny” discussed in our case law— “rational basis, strict scrutiny, something(s) in between”— can help focus our analysis, I worry that litigation over them can sometimes take on a life of its own and do more to obscure than to clarify the ultimate constitutional questions. Riddle v. Hickenlooper, 742 F. 3d 922, 932 (CA10 2014) (Gorsuch, J., concurring). 

Fourth, whatever the appropriate tier of scrutiny, I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans. The record before us establishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information.... 

Finally, the law before us also appears appropriately tailored to the problem it seeks to address. Without doubt, the remedy Congress and the President chose here is dramatic.... Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another. As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear. See Tr. of Oral Arg. 146– 147. But the question we face today is not the law’s wisdom, only its constitutionality. 

Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional. As persuaded as I am of the wisdom of Justice Brandeis in Whitney and Justice Holmes in Abrams, their cases are not ours. See supra, at 2. Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.

From the Per Curiam opinion:

Data collection and analysis is a common practice in this digital age. 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. A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations. On this understanding, we cannot accept petitioners’ call for strict scrutiny. No more than intermediate scrutiny is in order. 

As applied to petitioners, the Act satisfies intermediate scrutiny. The challenged provisions further an important Government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest. The Act’s prohibitions and divestiture requirement are designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users.... 

Father than meaningfully dispute the scope of the data TikTok collects or the ends to which it may be used, petitioners contest probability, asserting that it is “unlikely” that China would “compel TikTok to turn over user data for intelligence-gathering purposes, since China has more effective and efficient means of obtaining relevant information.” Brief for TikTok 50 (internal quotation marks omitted). In reviewing the constitutionality of the Act, however, we “must accord substantial deference to the predictive judgments of Congress.”...  

The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.... We are especially wary of parsing Congress’s motives on this record with regard to an Act passed with striking bipartisan support. See 170 Cong. Rec. H1170 (Mar. 13, 2024) (352–65); 170 Cong. Rec. S2992 (Apr. 23, 2024) (79–18).... 

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. 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.....

So, in short: Deference to Congress.