Judicial opinions allowing the government to suppress speech in the name of national security rarely stand the test of time. But time has been unusually unkind to the US supreme court decision that upheld the law banning TikTok, the short-form video platform. The court issued its ruling less than a year ago, but it is already obvious that the deference the court gave to the government’s national security arguments was spectacularly misplaced. The principal effect of the court’s ruling has been to give our own government enormous power over the policies of a speech platform used by tens of millions of Americans every day – a result that is an affront to the first amendment and a national security risk in its own right.
Congress passed the TikTok ban in 2023 citing concerns that the Chinese government might be able to access information about TikTok’s American users or covertly manipulate content on the platform in ways that threatened US interests. The ban was designed to prevent Americans from using TikTok starting in January 2025 unless TikTok’s China-based corporate owner, ByteDance Inc, sold its US subsidiary before then.
Many first amendment advocates and scholars – including the two of us – expected the court to be intensely suspicious of the law. After all, TikTok is one of the most popular speech platforms in the country, and banning access to foreign media is a practice usually associated with the world’s most repressive regimes. Even more damningly, a long list of legislators forthrightly acknowledged that their support for the ban stemmed not only from general concerns about what users might see on the app but from a desire to suppress specific kinds of content – especially videos showing the devastation caused by Israeli airstrikes in Gaza and other content deemed to be sympathetic to Palestinians. For laws that regulate speech, motivations like that are usually fatal.
But the justices upheld the ban – unanimously – in a thin and credulous opinion issued just a week after oral argument. Disregarding legislators’ censorial motivations, the court said the law could be justified by privacy concerns, and it accepted without serious scrutiny the government’s argument that the ban was necessary to protect users’ data.
Privacy and security experts had told the court that banning TikTok would not in fact meaningfully constrain China’s ability to collect Americans’ data, and that if the government wanted to address legitimate privacy concerns online it could do so without so dramatically curtailing Americans’ free speech rights. The court’s response was that it was the job of the executive branch, not the judiciary, to make decisions about national security and foreign affairs.
This is not how the first amendment is supposed to work. For one thing, courts are not supposed to close their eyes when the government says it wants to control what people can say or hear. A law motivated by a desire to suppress particular categories of content – to suppress “misinformation, disinformation, and propaganda”, as the House committee report on the bill put it – should at the very least be subject to stringent review.
And courts are not supposed to allow the government to side-step this review simply by declaring that national security requires censorship. That is the central lesson of the last hundred years of first amendment doctrine.
During the first Red Scare, courts allowed the government to use the Espionage Act to imprison hundreds of activists for nothing more than opposing the war. Modern first amendment doctrine evolved as a reaction against these mistakes. It is meant to protect the democratic process by ensuring that courts review more carefully the government’s purported national security justifications for suppressing speech.
Events since the court’s ruling have only underscored why the justices were wrong to defer to the government’s arguments. The court issued its ruling on 17 January because the ban was meant to go into effect two days later. But even after the court rushed to judgment, Donald Trump issued an order saying he would suspend enforcement of the law for 75 days.
Since then, he has extended this suspension four more times without any legal basis at all – and he may extend it again. Meanwhile, TikTok continues to operate as it did. Legislators who were insistent that TikTok poses an urgent threat to American security cannot be reached for comment. All of this makes a mockery of the government’s national security claims – and of the court that deferred to those claims.
Even worse, the court’s decision means that TikTok now operates under the threat that it could be forced offline with a stroke of the president’s pen. Conservatives and liberals alike have expressed concerns for years about government officials using informal threats to “jawbone” social media companies into changing their content-moderation policies, but no previous administration has enjoyed the power to extinguish a platform simply by enforcing existing law.
Whether TikTok is already conforming its policies to Trump’s preferences – as many American universities, media companies and law firms have been doing – is difficult to know. Even if the platform is not conforming now, though, it may well conform in the future, because Trump has been brokering a deal to have the platform transferred to his ideological allies.
Plainly, the court cannot be blamed for all of this. It was not foreseeable that Trump would simply refuse to enforce the law, for example. Still, we could have avoided this ending if the court had not bungled the beginning. If the court had carefully scrutinized the government’s national security arguments, it would have seen that the TikTok ban, for all of its novelty, is actually just a familiar example of the government exploiting the rhetoric of national security to intimidate courts into giving it power that the constitution puts off limits.
The court would have understood that the ban itself created a serious national security risk – the kind of risk the modern first amendment was intended to prevent – by giving the government far-reaching influence over public discourse online.
Over the coming months, the supreme court will confront other cases in which the government says that national security requires the suppression of speech. The court’s analysis of those cases should be haunted by the TikTok case and its embarrassing, scandalous coda. We need the court to play its constitutionally appointed role – and not simply defer credulously to political actors deploying the rhetoric of national security in the service of censorship.
