Likes and the First Amendment: The Constitutional Debate Over Regulating TikTok

In January 2025, the Supreme Court heard arguments in TikTok Inc. v. Garland, 604 U.S. ___ (2025), one of the most consequential First Amendment cases in recent years. At stake was a federal law requiring ByteDance, TikTok’s Chinese parent company, to either sell the platform or face a nationwide ban. For over 170 million users, the decision was about more than an app; it was about who controls the digital spaces where Americans create content. The government's position is straightforward: TikTok poses a national security threat because the Chinese government could exploit ByteDance's access to American user data or manipulate what content reaches American audiences. Congress, invoking its broad authority over foreign commerce and national security, passed the Protecting Americans from Foreign Adversary Controlled Applications Act in 2024. The law's supporters argue it is a measured, targeted response to a genuine threat.

But the constitutional questions raised by the ban are neither simple nor easily resolved. When the government restricts access to a platform used by millions of Americans to express political views, build businesses, and engage in public life, it is not merely regulating a foreign company; it is restricting speech. And when speech is restricted, the First Amendment requires the government to provide a compelling justification.

The First Amendment to the United States Constitution states that Congress cannot pass laws that restrict freedom of speech. Even though the wording sounds absolute, the Supreme Court of the United States has ruled that some limits on speech are allowed, but only under very strict conditions. When the government restricts speech based on its content or viewpoint, courts apply the constitutional test known as strict scrutiny, which requires the government to prove that the restriction serves a compelling interest and is narrowly tailored so it limits as little speech as possible. In its amicus brief in TikTok v. Garland, the American Civil Liberties Union argued that banning an entire platform would trigger this high standard, meaning the government would have to show the platform to pose a real and serious national security threat and prove that a ban is the least restrictive way to address it, rather than relying on speculative harms.

The United States Department of Justice defended the law with two main arguments. First, it claimed the Chinese government could potentially manipulate TikTok’s algorithm through its parent company, ByteDance, to spread propaganda or suppress certain viewpoints among American users. Second, it argued that TikTok’s data collection could allow Chinese intelligence agencies to access sensitive information about Americans. While these concerns sound serious, the government admitted there is no documented evidence that China has actually used TikTok in either of these ways. 

This is important under the First Amendment because courts have repeatedly said the government cannot restrict speech based on hypothetical harms. For example, in Lamont v. Postmaster General, 381 U.S. 301 (1965), the Supreme Court struck down a law limiting the delivery of communist propaganda, ruling that even small restrictions on the flow of ideas can violate the First Amendment. A complete platform ban would be an even more extreme restriction. The data-security argument also has weaknesses, since many American companies collect large amounts of user data, and the government never explained how banning TikTok would actually stop China from getting similar information through other sources, such as the commercial data market.

In evaluating whether the law is narrowly tailored, courts look at whether the government could achieve its national security goals without restricting as much speech. Several alternatives to banning TikTok exist. For example, the government could pass stronger data-protection rules that require TikTok and other tech companies to prevent foreign governments from accessing user data, which would address security concerns without affecting the platform’s roughly 170 million users. 

Regulators could also require more transparency about how TikTok’s recommendation algorithm works, so researchers could detect any manipulation. Another option would be forcing ByteDance to sell TikTok to a non-Chinese owner, which is still restrictive but less extreme than banning the platform entirely. The fact that these alternatives exist matters under the constitutional test of strict scrutiny, which is a part of the First Amendment. If the government can reach the same goal through a less restrictive policy, then a total ban likely would not be considered narrowly tailored and would have trouble surviving constitutional review.

Whether TikTok actually poses a national security threat is ultimately a question for intelligence officials and policymakers. The legal issue, however, is whether Congress can block access to a platform used by more than 170 million Americans without meeting the demanding requirements of strict scrutiny under the Constitution’s First Amendment. So far, the United States Department of Justice has mainly pointed to potential harms while admitting there is no direct evidence that the platform has been exploited, and it has not clearly shown why less restrictive options would not work. If the First Amendment is meant to place real limits on government power, that gap in evidence matters. More broadly, how the Supreme Court of the United States handles this conflict between national security and free expression could shape how speech is protected online for years to come, especially if national security arguments start being used to justify broader limits on digital platforms.

Source: The U.S Sun