After last Friday’s oral argument in TikTok, Inc. v. Garland about the federal law requiring the Chinese company ByteDance to either divest from TikTok or cease operating the platform in the United States, I concluded, “There may not be even a single vote to strike down the law or even pause it until Donald Trump can be sworn in.” This morning, the Court unanimously upheld the ban in an unsigned per curiam opinion. Only Justices Sonia Sotomayor and Neil Gorsuch wrote separately, but Sotomayor joined the bulk of the per curiam opinion, and both she and Gorsuch concurred in the judgment; no justice would have struck down the law’s choice of a forced divestiture or a ban. As I predicted, the Court’s decision rests entirely on the national security threat posed by TikTok’s collection of data on Americans for a foreign adversary government. As Gorsuch summarized: “Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.”

The Court had very little time (by its lofty standards) to write an opinion, having taken the case in late December and heard arguments just five days ago, but the statutory January 19 deadline forced its hand. That’s traditionally been a bad omen: from Bush v. Gore to the Pentagon Papers case to Trump v. Anderson, the Court has tended to write less carefully (even when reaching the correct result) when it is rushed. The Court acknowledged its discomfort with both the speed at which it was compelled to resolve the case and the necessity for it to assess an evolving technology in ways that could easily “embarrass the future.”

There were two big doctrinal questions. First, is this is really a First Amendment case at all — did Congress regulate or discriminate against speech? Second, should the Court assess the asserted national security threats, or just defer to Congress? On the first point, while noting that “to the extent that ByteDance Ltd.’s asserted expressive activity occurs abroad, that activity is not protected by the First Amendment,” the Court treated the act more as a law with an incidental burden on speech within the U.S.:

A law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny. Those differences — the Act’s focus on a foreign government, the congressionally determined adversary relationship between that foreign government and the United States, and  the causal steps between the regulations and the alleged burden on protected speech — may impact whether First Amendment scrutiny applies. . . .

The Court thus didn’t fully resolve the required  standard of review. Sotomayor would have held that it should be assessed as a regulation of speech. In any event, the per curiam opinion found no discrimination against the content on TikTok, and emphasized that its sheer size and how it operates justifies the government singling it out:

The challenged provisions are facially content neutral. They impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States. They do not target particular speech based upon its content. . . .

The Government also supports the challenged provisions with a content-neutral justification: preventing China from collecting vast amounts of sensitive data from 170 million U. S. TikTok users. That rationale is decidedly content agnostic. It neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys. . . . TikTok has special characteristics — a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U. S. users — that justify this differential treatment.

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.  [Citation omitted.]

The Court afforded “substantial deference” to Congress in both its diagnosis and its proposed remedy of divestiture, but emphasized (in a point cheered by Gorsuch, who had raised the issue at argument and in today’s concurrence) that it was ruling based only upon the public record, and not on the basis of secret, sealed submissions.

One flourish may come back to haunt the Court: “We are especially wary of parsing Congress’s motives on this record with regard to an Act passed with striking bipartisan support.” Of course, the constitutionality of an Act of Congress should never depend upon whether it is bipartisan.

But TikTok may yet escape the ban — not because it’s not legally binding, but because the outgoing Biden administration is unwilling to enforce the law, and the incoming Trump administration is determined to thwart it. More on that to follow.