High court ruling in TikTok v. Bush vs. Gore could make the tech giants responsible for free speech censorship

The justices want their ruling to be narrowly focused given that the case involves new technologies. They pointed out that even though it is common for companies to collect data,TikTok has a large amount of sensitive data and it helps address the government’s national security concerns. A law targeting any other speaker would have separate considerations and an inquiry. Ultimately, the government “had good reason to single out TikTok for special treatment.”

The justices offered their opinions in reply to the final judgment. She thinks the law implicates the First Amendment because it is obvious. Even so, she agrees that the law can survive such scrutiny.

But to TikTok executives, that is merely a symbolic life raft, since ByteDance has consistently indicated that the platform, China’s first global social media hit, is not for sale. China’s export control laws prevent Tik Tok from being sold if Beijing approves the transaction, something experts say is not likely to happen.

The high court’s decision means that starting on January 19th, Apple and other tech giants will no longer offer TikTok. Web-hosting providers must cut ties with the platform or be subject to fines of $5,000 for each user that can still access the service, a penalty that can easily add up to billions of dollars.

The justices framed the ruling as TikTok specific, but it could have consequences that exceed the app’s corporate ownership, according to a law professor at Georgetown University who has followed the case closely.

The decision in Bush v. Gore is a one-off and isn’t meant to have greater precedential value, as was seen in the 2000 ruling. “But this will be a very important decision,” he said. “And it gives enormous power to Congress to act on data privacy questions.”

Neil Gorsuch was the only justice to voice concern about free speech implications when it came to banning TikTok.

“I mean, don’t we normally assume that the best remedy for problematic speech is counter speech?” said Gorsuch, adding that TikTok has raised the possibility of including a disclaimer on its app indicating that some content could be covertly manipulated by China.

“If you walked into a store and there was a sign stating one million products cause cancer, that’s what you’d think,” Elizabeth Prelogar told the court. “That is not going to let you know that the product endangers your health.”

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The Biden White House press secretary said in a statement that it would be up to the incoming administration to implement the law following the Supreme Court ruling. “Given the sheer fact of timing, this administration recognizes that actions to implement the law simply must fall to the next administration, which takes office on Monday,” she said.

Donald Trump is now the center of attention. He filed a brief with the Supreme Court ahead of last week’s oral arguments asking that the justices delay a ruling to provide him time for his administration to cut a “negotiated solution” that would resolve the national security concerns.

If progress has been made toward a sale away from ByteDance, the president can delay the ban for 90 days.

On Friday, Trump said on his website that he hasn’t made a decision yet. Everyone must respect the decision of the Supreme Court. There will be a decision made on TikTok soon, but I should have enough time to review the situation. Stay with us!

“When push comes to shove and these restrictions take effect, I think it will fundamentally change the landscape with respect to what ByteDance is willing to consider, and it might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process,” she said.