CNN
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The Supreme Court’s remarkably speedy decision Friday to allow a controversial ban on TikTok to take hold will have a dramatic impact on the tens of millions of Americans who visit the app every day and broad political implications for President-elect Donald Trump.
But the court’s unsigned opinion and two concurrences also revealed deeper divisions on the court over how the First Amendment applies to social media.
The high court, which has generally sided with First Amendment interests for decades, brushed aside concerns TikTok raised about the ban trampling on free speech rights. The court also quickly dispensed with concerns the Biden administration raised about the possibility of covert content manipulation by the Chinese government.
First Amendment groups siding with TikTok warned that the ruling could have deeper ramifications.
“Make no mistake, by allowing the ban to go into effect, the Supreme Court has weakened the First Amendment and markedly expanded the government’s power to restrict speech in the name of national security,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “Its implications for TikTok may be limited, but the ruling creates the space for other repressive policies in the future.”
The ruling came days after the justices heard oral arguments in another important First Amendment case challenging a Texas law that requires age verification for pornography sites. A majority of the justices signaled in that case they were inclined to ultimately uphold the law.
Here are some key takeaways from the Supreme Court’s ruling in the TikTok case:
Simmering within the 27 pages released by the court Friday is a looming debate over the First Amendment and whether it applied to the law at all.
That debate has already come up in some social media cases, and there’s a good chance it will again. Part of that question is whether content curation on social media — like the design of a news organization’s website — is protected speech or whether the feeding of videos to users based on an algorithm is something else entirely.
The justices who signed on to the court’s per curiam opinion, grappled with whether the law is subject to a First Amendment review since it does not directly regulate the content posted by the app’s users. Instead, the court embraced the idea that the law is targeted at TikTok and its Chinese-based parent company, ByteDance, through the divestiture provision.
In other words, the court reasoned, the law may not have anything to do with shutting down cat videos on TikTok. It’s about forcing a major company to cut ties with a foreign adversary.
“It is not clear that the act itself directly regulates protected expressive activity, or conduct with an expressive component,” the opinion read.
Still, the court acknowledged that over the years it has not provided clear guidance on how the law treats a situation in which a law targeted at say, a company’s foreign ownership, indirectly affects the content the company publishes.
But the TikTok case, the court said, was not the vehicle for breaking new ground in the First Amendment sphere. Instead, the court raised the question and then declined to answer it.
“We assume without deciding that the challenged provisions … are subject to First Amendment scrutiny,” the opinion read.
That assumption was seen as wholly inadequate for Justice Sonia Sotomayor, who wrote in a brief concurrence that she agreed with all the court’s legal reasoning except that part. It is clear, Sotomayor said, that the First Amendment was implicated in the TikTok case.
“I see no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does,” the court’s senior liberal justice wrote.
Pointing to social media cases the court decided last year that dealt with the content hosted on platforms, Sotomayor said that “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform.”
In those cases, which dealt with laws enacted by Florida and Texas that were intended to ensure conservative views are not throttled on social media, a majority of the court said that curation decisions by social media were expressive activity, though that wasn’t central to the court’s decision.
The Biden administration had made two national security arguments to defend the TikTok ban. The first was that China could access user information, including private messages and videos watched, which it might use for “espionage or blackmail.”
National security experts also warned that the China could covertly manipulate the content on TikTok, either to promote the government’s viewpoint or sow discord during a crisis.
In its decision, the Supreme Court focused almost entirely on the data collection piece of that argument. That allowed the court to focus heavily on an issue that didn’t involve potential First Amendment protection.
“The platform collects extensive personal information from and about its users,” the court’s unsigned opinion read.
TikTok does “not dispute that the government has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users,” the court wrote. “Nor could they.”
Data collection, the court acknowledged, is a common practice in the digital age.
“But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the government’s national security concerns,” the opinion stated.
For decades, the Supreme Court has been leaning into First Amendment protections in a way that has blurred the conservative-liberal divide that often decides high-profile culture war cases.
But this week, the justices appeared to move in the other direction.
In addition to rejecting TikTok’s challenge to the ban on First Amendment grounds, the court also signaled it may be prepared to reject another speech challenge dealing with obscenity.
A majority of justices signaled Wednesday that Texas may be permitted to require some form of age verification for pornographic sites, despite an argument from the adult entertainment industry that the law would chill adults’ ability to access protected speech.
Of particular note during those arguments was Chief Justice John Roberts, who repeatedly suggested that the court might consider revisiting precedents protecting obscenity online.
“The technological access to pornography, obviously, has exploded,” Roberts said. “It was very difficult for 15-year-olds … to get access to the type of thing that is available with the push of a button today.”
Is rethinking the court’s approach something that “we should at least consider,” Roberts asked, “as opposed to keeping a structure that was accepted and established in an entirely different era?”
Precisely what will happen to TikTok on Sunday is murky.
Experts originally expected the app to at least be removed on Sunday from the Apple and Google app stores — which could face fines under the law for continuing to host TikTok after the deadline. TikTok took that one step farther in recent days, suggesting that it might “go dark” even for those who have already downloaded the app without intervention from the Supreme Court.
While the law hasn’t changed, the political winds have definitely shifted.
Trump, who will be sworn in on Monday, has vowed to save the app. The White House on Friday, meanwhile, said enforcing the law “will be up to the next administration.”
All of that could leave it up to TikTok and the app stores to decide how to assess the shifting landscape.
CNN’s Tierney Sneed contributed to this report