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Freedom or security – The US Supreme Court to uphold the TikTok ban but what happens after the Inauguration?

In the United States, more than 170 million people use the globally spread platform, TikTok. This represents about half of the US population. Despite its popularity, the United States is about to ban the platform from the country as of 19 January. The noises do not seem to settle and as the final day is approaching, the media are loud regarding the Supreme Court’s stance on the decision to allow the ban the platform countrywide.

The long-standing battle between the media giant and the global superpower has been in the spotlight since 2020 but took a turn in spring 2024 with the new law banning TikTok (designated as a “foreign adversary-controlled application”) and with TikTok suing the US government in exchange. We have already been covering the development of US’s strides against TikTok on this platform, and this post seeks to provide further insight into the matters at hand. The legislative efforts in the U.S. aim to at regulate TikTok due to national security concerns related to its Chinese ownership. The U.S. Congress passed PAFACA (“Protecting Americans from Foreign Adversary Controlled Applications Act”) which, forces ByteDance (TikTok’s parent company) to divest from the platform or face a nationwide ban due to national security concerns.

This bill has garnered bipartisan support and is seen as a significant step in addressing the above concerns, including fears that TikTok could be used for espionage or to influence public opinion through misinformation campaigns. This approach reflects a sophisticated strategy to address the risks posed by foreign-controlled platforms while avoiding direct content censorship. This article ultimately underscores the difficult balance between safeguarding national security and protecting democratic freedoms, particularly the right to free speech in the digital era.

TikTok strongly opposed the bill, mobilizing its user base to lobby Congress and push back against the legislation. This strategy underscores the platform’s belief that the bill could limit Americans’ free expression. Critics of TikTok’s mobilization, however, argue that such efforts demonstrate how influential the platform has become in shaping political discourse and confirm the US’s worries regarding national security.

The Act seeks to force TikTok’s divestiture or block its operations by targeting app stores and internet service providers, raising significant questions about the balance between national security and free speech. However, this “solution” mirrors digital governance models in authoritarian regimes like China and Russia, which justify strict controls on the internet for national security but limit free expression and international exchange. Adopting similar measures in the U.S. could undermine the open internet ethos and democratic values, which is, at the moment, are frightening to many US citizens. The US have always had a more liberal approach towards fundamental rights than European countries, as in Europe, the limitation of free speech, thus some extent of censorship – of course following the requirement of proportionality and necessity – was always accepted and even required by the population. The United States, however, has always sided with the idea of not unlimited but as much freedom as possible.

The First Amendment implications are significant, as any government action to ban or divest TikTok must meet strict scrutiny. The government would need to demonstrate a compelling national security interest and prove that less restrictive measures are unavailable. (An interesting webinar by the Federalist Society recently outlined the different arguments and their possible consequences.) Interestingly, the national security risks posed by TikTok are debated, no conclusive evidence of espionage or influence operations has been presented. U.S. officials have only suggested potential risks, leaving the actual threat unproven. The lack of solid foundation of the ban shocked not only the media giant but also US citizens. While addressing legitimate security concerns is important, a more nuanced approach to platform regulation is needed to balance national security with the preservation of free expression and the open internet.

Both the platform and the creators went to the Supreme Court for the protection of their right to the freedom of expression after last December, a three-judge appeals court decided on upholding the ban. This side argued in their interview to BBC that a ban is unfounded as the motives behind it are strictly ideological which reason is not satisfactory to qualify as a threat to national security. Furthermore, many of these creators earn their livelihood through posting on this platform which would endanger the financial security of many families. Whereas, the government representative from the justice department claimed that the threat is potential as the Chinese influence is present due to the company’s ownership and in the case, China decides to harm the United States, the damages might be irreversible. After the hearing of more than hundred people at the Supreme Court, the nice justices seems to have sided with the government on upholding the ban and the deadline of 19 January 2025. The justices argued on the hearing on 10 January 2025 that the ban is not for shutting the platform down but to keep operating but to close its ties with the Chinese government. This could be resolved by ByteDance selling their ownership to a company not influenced by the Chinese government. Further, they argued that as First Amendment rights concern Americans, TikTok’s owner, ByteDance does not have this right as it is a Chinese company. However, the lawyers of TikTok raised concerns that the government specifically targeted TikTok, while leaving other countries with similar influence, off their radar (for instance the retail giant Temu).

After the hearing on 10 January, TikTok issued a warning that they are only the first victims of the US’s Congress and many other companies may get captured in the future as well as many large American companies are under Chinese influence, such as AMC movies. giving concerns over freedom of speech. If the ban on TikTok takes effect on January 19, Apple and Google would no longer be able to offer TikTok for download by new users, although existing users would still be able to access the app. However, the U.S. government and TikTok have agreed that the app would degrade and eventually become unusable over time due to the cessation of supporting services.

The fistfight between the U.S. and TikTok took a turn when Donald Trump was elected to be president on 5 November 2024. He demands a political-diplomatic solution instead of legal restrictions. Interestingly, the deadline for TikTok to act or shut down is set to be on the 19 January 2025, one day before the president-elect is inaugurated. Back in December 2024, Trump initiated (in an amicus brief) that the Supreme Court put a pause on the ban and wait for his presidency so he could dispute this debate through the political branches with China. But the Supreme Court does not seem to agree with his approach. Under the relevant law, the U.S. President has the authority (freedom) to extend the deadline for 90 days, but only if ByteDance demonstrates substantial progress – a condition that has not been met in this case. In conclusion, the Court does not seem to lean towards granting a preliminary injunction of the enforcement of the law but as the U.S. president has enforcement discretion, it could also happen, that after Trump takes presidency, he will act and start negotiations with the Chinese government also by extending the deadline with 90 days, upon a renewed assessment of corporate compliance by ByteDance.


Dorina BOSITS is a law student at the Széchenyi István University of Győr, Hungary, and an international finance and accounting graduate of the University of Applied Sciences of Wiener Neustadt, Austria. She is currently enrolled for an exchange semester at the Karl Franzes University of Graz, Austria. The main area of her research includes freedom of speech, digitalization, space law, data protection, and financial law. She is a student at the Law School of MCC and a member of ELSA Győr.