Supreme Court Justice Neil Gorsuch agrees the TikTok law is constitutional, but isn’t so sure it will serve its purpose

The US Supreme Court on Friday upheld a law that could soon ban TikTok.

While its decision — that the divest-or-ban law does not violate the First Amendment rights of TikTok or its users — was unanimous, Justice Neil Gorsuch offered his own view in a concurring opinion, raising doubts about whether the law would be effective.

“Whether this law will succeed in achieving its ends, I do not know. A determined foreign adversary may just seek to replace one lost surveillance application with another,” Gorsuch wrote. “As time passes and threats evolve, less dramatic and more effective solutions may emerge. Even what might happen next to TikTok remains unclear.”

“But the question we face today is not the law’s wisdom, only its constitutionality,” the justice wrote.

Gorsuch said that since the court was given just a handful of days to issue an opinion in the high-stakes matter, “I cannot profess the kind of certainty I would like to have about the arguments and record before us.”

“All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional,” he wrote.

In his opinion, Gorsuch said the court was right to refrain from “endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’ as a justification for the law before us.”

“One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’” he wrote.

“Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them,” he added. “Without question, the First Amendment has much to say about the right to make those choices. It makes no difference that Americans (like TikTok Inc. and many of its users) may wish to make decisions about what they say in concert with a foreign adversary.”

TikTok has fought to overturn the law, which was framed around national security concerns and signed last year by President Joe Biden. It gave TikTok’s Beijing-based parent company, ByteDance, until January 19 to sell its US operations of the popular social media platform to a non-Chinese company or be booted from app stores.

In oral arguments before the Supreme Court last week, a lawyer for TikTok said the platform would likely “go dark” in the United States if the Supreme Court failed to extend the divestment deadline.

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