Supreme Court hears challenge to TikTok divestiture law, justices split over speech and security

The Supreme Court heard oral argument in TikTok v. Garland, a challenge to a federal statute that requires a qualified divestiture of TikTok's parent company or otherwise bars the app from operating in the United States.

Mister Francisco, counsel for TikTok Incorporated, told the Court that “Under the act, one of America’s most popular speech platforms will shut down in nine days,” arguing the statute imposes a direct burden on TikTok’s editorial algorithm and therefore triggers the First Amendment. Francisco urged the Court to view the divestiture requirement as a content-based restriction that must survive strict scrutiny and said Congress failed to consider less-restrictive alternatives such as a ban on sharing sensitive U.S. user data with the foreign parent or targeted disclosure rules.

Nut graf: The case asks the justices to balance two competing sets of concerns: whether Congress may require a foreign-controlled company to divest to protect national security, and whether that remedy unlawfully restricts speech by U.S. users, creators and a U.S. subsidiary that uses a recommendation algorithm to curate content.

Counsel for petitioners repeatedly framed the dispute as one about who is the speaker and whose editorial judgment is being regulated. Francisco argued the law “singles out a single speaker for uniquely harsh treatment” and that the Act’s trigger—operation of a social media platform with user-generated content—makes the restriction content based. He told the Court that even if ByteDance, the Chinese parent, exerts influence abroad, the U.S. subsidiary “has its own set of First Amendment rights” and that forcing a divestiture unduly burdens the subsidiary and its creators.

Responding for creators who post on TikTok, Mister Fisher said the statute directly regulates the expressive work of American creators and the platform that disseminates their videos. Fisher pointed the Court to Sorrell and other precedents about speaker- and viewpoint-based restrictions and told the justices the Act’s “text of the statute regulates our speech” and that disclosure or less-restrictive data controls were available alternatives the legislative record did not address.

For the United States, Solicitor General Prelogar defended the statute as a national-security measure narrowly aimed at removing foreign-adversary control. “The Chinese government’s control of TikTok poses a grave threat to national security,” Prelogar told the Court, stressing Congress acted to prevent covert influence operations and to block a foreign power’s access to sensitive data on tens of millions of Americans. She argued divestiture follows a long tradition of limiting foreign control over U.S. communications channels and said the Act leaves the underlying speech unrestricted once the platform is freed from foreign-adversary control.

Several justices probed both sides on feasibility and tailoring. Justices asked whether a divestiture could realistically be executed in the statute’s time frame, whether a disclosure requirement would be adequate to mitigate covert manipulation risks, and whether prohibiting a foreign owner (rather than directly regulating content) nonetheless amounts to a content-based, speaker-targeted restriction requiring strict scrutiny. Counsel acknowledged factual disputes in the record about operational control of the algorithm and the technical difficulty of separating the U.S. platform from global engineering teams.

The Court also discussed procedural questions that arose during briefing: the role of classified evidence presented below, the significance of congressional findings about foreign-government control, and whether an incoming administration could affect enforcement timing. Petitioners asked the Court for a preliminary injunction or administrative stay to preserve the platform while the Court resolves the constitutional question; the government said the record supported the statute’s enactment and emphasized the national-security justification.

Ending: After roughly two hours of argument, the case was submitted. The justices will decide whether the statute’s divestiture remedy is an impermissible content-based restriction on speech or a permissible, narrowly tailored national-security measure. The Court’s decision will determine whether the statute can force divestiture or whether the platform and its creators remain protected by the First Amendment in the circumstances described in the record.