Will TikTok Be Banned in the US?
Supreme Court justices appear poised to allow a law banning the social media platform in the US to take effect on January 19, say BU LAW professors

Congress has ordered Chinese company ByteDance to divest from the US-owned TikTok, Inc.—and unless the Supreme Court intervenes, it’s likely that TikTok will go dark on January 19. Photo via AP/Jaap Arriens/Sipa USA
Updated: Supreme Court Rules in Favor of TikTok Ban in US Unless Chinese Parent Company Sells
Supreme Court justices say “national security concerns” outweigh the app’s popularity as an “outlet for expression.”
Editor’s note: On January 17, the Supreme Court decided unanimously against the social media company TikTok, rejecting its First Amendment challenge to the law that effectively bans it in the United States starting on Sunday, January 19. In its ruling, the court said, “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.”
On January 19, TikTok began welcoming back users after going dark for less than 24 hours. The news came after President-elect Trump announced that he would issue an executive order on his first day in office temporarily halting a ban on the social media platform.
This story was originally reported on January 16, before the Supreme Court decision was announced.
As anyone who’s logged on to TikTok knows, the site’s short-form videos are meant to be as clear-cut and easily digestible as possible. If only that were true for the court case that will decide the social media platform’s future in the United States.
TikTok, Inc. v. Garland presents Supreme Court justices with a thorny decision: How to reconcile two major issues—freedom of speech and national security—that appear to be at odds with each other in this instance. At the heart of the case is the fact that TikTok is owned by ByteDance, a company based in and allegedly controlled by the People’s Republic of China, a US adversary. Last year, with concern mounting in Washington about China potentially having access to the personal data of hundreds of millions of American users of TikTok, Congress passed a law with broad bipartisan support that effectively bans the social media platform unless ByteDance divests from the US-based TikTok, Inc.
Lawyers for the US government and for TikTok and its users argued their cases before the nine justices for nearly two and a half hours on January 10. And, although the justices’ comments during these oral arguments aren’t a perfect window into their decision-making, their lines of questioning leads two Boston University law professors (and many other court-watchers) to believe it’s likely that the January 19 TikTok ban will stand.
“I would be very surprised if it’s not 6-3, even 7-2” for the government, says Jessica Silbey, the Honorable Frank R. Kenison Distinguished Scholar in Law at BU.
The law identifies China and three other countries—North Korea, Russia, and Iran—as “foreign adversaries” of the United States and bars the use of apps controlled by those countries. The law also defines applications controlled by foreign adversaries to include any app run by TikTok or ByteDance.
The Biden administration defended the law, saying that TikTok poses a grave threat because China can use it to collect massive amounts of data on the roughly 170 million Americans who use it.
Solicitor General Elizabeth Prelogar, arguing for the government, raised that point, adding that the concern goes far beyond what could be remedied by, say, a simple warning.
“The interest in data privacy that she was talking about was the collective use,” Silbey explains. “As children and teenagers on TikTok grow up to become officers of the court or military, and China has all this information about them, what happens? It’s about data aggregation and data accumulation over time, and how powerful that can be. That’s important.”
As children and teenagers on TikTok grow up to become officers of the court or military, and China has all this information about them, what happens?”
There appeared to be broad consensus on that front, says Woodrow Hartzog, BU law professor whose work focuses on privacy and technology law.
“Listening to oral arguments, there wasn’t a lot of disagreement about whether data protection was a compelling governmental interest—which I think almost everybody agreed that it is—and that the government’s action in requiring divestment in some way furthers that governmental interest,” he says.
Lawyers for TikTok and for a group of TikTok creators, meanwhile, argued that the law deprives users of their preferred digital publisher, infringing on the right to free expression. This is where the justices will need to navigate a narrow path forward.
“What this fight might come down to is whether the law that was passed was the least restrictive means of protecting that data, or at least doesn’t restrict more speech than necessary under the First Amendment,” Hartzog says.
But even that opens up difficult questions about what, exactly, qualifies as protected speech, say Hartzog and Silbey. The case before the court now may ultimately serve as a guardrail for a court that has been broadening the definition of speech in recent years, Silbey says.
The justices will need to determine “what is ‘speech’ here and whose is it?” Silbey says. “Is it the users’ posts on the platform? Is it the platform’s algorithm that’s determining what users are seeing? Are algorithms ‘speech’? Is it TikTok, Inc.’s speech—a US company owned by ByteDance—or is it ByteDance’s speech that is at issue? So, if this is a First Amendment problem—if this law is abridging speech in some way—whose speech is it? Figuring out what speech is at issue here will be instructive.”
It is true that a law that effectively shuts down a social media platform will quiet TikTok’s hundreds of millions of US users, but Prelogar argues that this result is incidental to the government’s true purpose, which lawmakers explicitly stated is preventing the Chinese government from collecting data on Americans and from manipulating what content they see.
So, what happens if the court doesn’t intervene, and the law goes into effect on January 19? The justices seemed just as interested as TikTok’s users. And when they asked about it, Prelogar delivered a line of argument that Silbey saw as “the final nail in the coffin.”
Prelogar argued that TikTok’s assertion that it would go dark on the 19th was akin to a threat in a high-stakes game of chicken. Congress needs the muscle of the Supreme Court to see this game through, Prelogar argued, in order to truly convince ByteDance to divest from TikTok.
“What Prelogar said was that it’s very likely that Congress knew that no foreign entity was going to voluntarily comply with a law unless there’s an actual threat that it’s going to shut down,” Silbey says. “And what that’s about is the power of the court. What I heard in the questions from justices such as [Samuel] Alito, who had seemed skeptical until that moment was, ‘Oh, so if they go dark, and then ByteDance divests, and then TikTok can turn on again?’ And the answer is: yes, that’s exactly right.”
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