TikTok v. Garland: A Catalyst for Global Digital Censorship and the Splintering Web

It Twas the night of January 18th, 2024, as US TikTok users began to accept their fate as TikTok went dark–blocking out 170 million active users and 7 million businesses, creating an unorthodox migration to Chinese social media apps, and frustrating Americans who rely on the app. The ban–more akin to a timeout–was lifted a day later under the promise of non-enforcement, and business went on as usual. While TikTok is currently up and running, the implications of the TikTok v. Garland decision reach far beyond this blip in TikTok’s accessibility. Instead, it is indicative of a larger national objective to sidestep free speech in the name of national security–a decision that will reverberate through time and past America’s borders. 

The battle for TikTok began with the enactment of the Protecting Americans from Foreign Adversary Controlled Applications Act, which makes it “unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application” in the United States. [1] The justification for the act was national security concerns such as foreign propaganda and espionage. TikTok’s China-based owner, ByteDance, refused to divest its ownership of TikTok, resulting in a legal battle in which TikTok alleges the ban violates the free speech of the company and the millions of Americans who use the app. On Friday, January 17, 2025, the United States Supreme Court unanimously upheld the ban, citing that “TikTok’s data collection practices and relationship with a foreign adversary” warrant national security concerns and that the law does not violate First Amendment rights. [2]

After the Supreme Court upheld the Act, TikTok temporarily shut down access for US users on Saturday, January 18, 2025. Apple and Google removed TikTok from their app stores to avoid the Act’s $5 thousand fine per user, which, with 170 million US TikTok users, could reach into the hundreds of billions of dollars for each company. Its service was restored the next day after then President-elect Trump assured he would not enforce the ban immediately. On January 20th, President Trump issued an executive order that prohibits the Attorney General from enforcing the Act for seventy-five days from the date of the order or from the Department of Justice to “take no action to enforce the Act or impose any penalties against any entity for any noncompliance with the Act.” [3] Although the future of TikTok is uncertain, the implications of this decision are clear. 

The TikTok v. Garland case sets a dangerous legal precedent for violating free speech in the US in the name of national security. The Supreme Court claims in its decision that “Congress would have passed the challenged provisions based on the data collection justification alone.” [4] However, this ignores the main reason Congress enacted the law: to regulate the “covert manipulation” of speech on the platform through TikTok’s algorithm by China. By relying on the law’s supposedly legitimate rationale in data security, the Court disregarded the fact that the law was targeted at speech that Congress viewed as propaganda or indoctrination. Congress should not use data security as an excuse to regulate the speech it is afraid of. Instead, Congress should propose and enact a general data privacy law protecting all Americans if it views protecting Americans’ data as a serious concern. Additionally, the Supreme Court should not avoid scrutinizing the government's goal to control and limit online content. This sets a precedent that the government simply has to cite data security concerns to achieve its content regulation and censorship goals.

The Supreme Court should have subjected the law to strict scrutiny rather than intermediate scrutiny. The Court claimed the Protecting Americans from Foreign Adversary Controlled Applications Act satisfies intermediate scrutiny, which requires the court to analyze whether the law advances an important government interest that is not related to free expression suppression and does not restrict substantially more speech than necessary. The Court concluded that there is a “well-grounded interest in preventing China from collecting the personal data from tens of millions of U.S. TikTok users.” [5] However, under the Court’s own precedent in Reed v. Town of Gilbert, “a law that is content-based on its face is subject to strict scrutiny regardless of benign motive, content-neutral justification.” [6] When the Court concluded the law in question was facially content neutral, it therefore should have been subject to strict scrutiny. This is corroborated in Justice Neil Gorsuch’s concurring opinion, where he claimed he had “serious reservations” about whether the law is “content neutral” and thus escapes “strict scrutiny.” [7] If the Court utilized strict scrutiny, it would have found overwhelming evidence that the law was overwhelmingly content-based through the larger narrative of “content manipulation” by China in Congress, rather than data security. Therefore, the Court would have found that controlling how an algorithm selects and promotes speech is an editorial decision protected by the First Amendment, resulting in the Act being overturned, safeguarding free speech and democracy. 

Other countries, emboldened by the TikTok v. Garland decision, could also disguise their speech regulation under national security concerns. Foreign countries can issue US companies’ ownership of apps utilized by their citizens. By citing the Supreme Court’s TikTok precedent, they can target speech through fines or force US companies to sell their operations to a company approved by their government. This can gravely impact the organization and advocacy efforts of citizens in other countries who use apps like TikTok to build awareness of issues, criticize the government, or mobilize populations. TikTok v. Garland establishes the framework to limit free speech and control online content worldwide. The United States, a supposed hallmark of democracy, will be one of the few democratic nations to ban TikTok. If this trend continues, it can lead to a fracturing of the interconnectedness of social media apps and the internet as a whole as individual countries ban foreign-owned apps under the guise of national security. 

The TikTok v. Garland decision can catalyze the balkanization of the internet, often referred to as the “Splinternet,” which can have serious repercussions for connectivity and democracy worldwide. The Splinternet is a “balkanized set of computer protocols that increasingly differ by company and by country.” [8] This balkanization can make it more difficult to share experiences across countries, which is particularly important in oppressive regimes, where being able to connect to the outside world can inspire and facilitate change. The global nature of Internet companies can mitigate the amount of control repressive governments have on their citizens' access to the Internet and information. However, the TikTok v. Garland decision can kickstart a trend for other countries to isolate their networks and apps–and therefore their citizens–in the name of national security. The fragmentation of the internet will be a driving mechanism for a new “particularly authoritarian form of tribalism,” where countries withdraw from each other and refuse to interact. [9] Such a world will be harmful, if not catastrophic, to not only international cooperation efforts but to the citizens whose information flow is restricted and content and speech are regulated.

 The First Amendment has no exception for national security. The data collection of online users, particularly in social media, is a pressing issue that is long overdue and needs to be addressed. However, the TikTok v. Garland decision does not sufficiently combat that concern in and of itself, as US-owned companies collect the data and violate the privacy of Americans all the same. Instead, this law was primarily conceived to mitigate content the government did not agree with. By subjecting the Protecting Americans from Foreign Adversary Controlled Applications Act to intermediate scrutiny instead of strict scrutiny, the Supreme Court disregarded the content-based rationale for the Act. In doing so, this decision permanently destroyed a significant amount of free speech for Americans and constructed the framework for other countries to do the same, threatening democracy efforts globally.

Edited by Ava Betanco-Born

Endnotes

[1] H.R. 7521, 118th Cong., 2nd Sess. (March 5th, 2024)

[2] TikTok v. Garland 604  U.S. ___, 19 (2025).

[3] Exec. Order No. 14,166 90 FR 8611 (2025) https://www.federalregister.gov/documents/2025/01/30/2025-02087/application-of-protecting-americans-from-foreign-adversary-controlled-applications-act-to-tiktok 

[4]  TikTok v. Garland 604  U.S. ___, 18 (2025).

[5]  TikTok v. Garland 604  U.S. ___, 13 (2025).

[6] Reed v. Town of Gilbert 576 U.S. 155 (2015). 

[7]  TikTok v. Garland 604  U.S. ___, 2 (2025) (Gorsuch, N., concurring)

[8] Mark Lemley, “The Splinternet”, Duke Law Journal Vol. 70,  No. 6 (March 2021): 1418-1419, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4066&context=dlj 

[9] Ibid, 1421.