Does the Supreme Court’s big social media ruling open a backdoor to ban TikTok?

The Supreme Court issued a ruling today calling into question state laws that block social media companies from making moderation decisions. But in the decision, TikTok caught a stray.

The Court did not rule whether the laws were constitutional but challenged findings by the lower courts and sent them back for review.

According to the court’s majority decision, state laws that try to control the type of content platforms can choose to publish, or not publish in the case of moderation decisions like bans, could violate First Amendment protection.

But a concurring opinion from at least one justice points to there being at least one possible case where those First Amendment arguments would fall flat: for foreign-owned companies.

The ruling addresses cases brought by Netchoice, an industry lobbying group that represents big tech firms like TikTok, Facebook, and X, against the Florida and Texas attorneys general. 

Those companies sued after the two states passed laws challenging social media companies' rights to ban politicians and censor content in the wake of former President Donald Trump’s removal from their platforms after the Jan. 6 Capitol riot. 

The laws passed by the states limited the moderation social media companies could make by requiring explanations to be provided to users who had their content restricted and implementing steep fines for companies that banned politicians.

The Supreme Court didn’t rule whether the state laws were unconstitutional, but that the lower courts needed to reevaluate the First Amendment implications.

Netchoice and other groups who supported their case celebrated the decision.

“The majority rightly recognizes that Florida and Texas laws are more sweeping than the sponsors suggest,” the National Taxpayers Union, who filed an amicus brief questioning the constitutionality of the state laws, wrote in a press release.

But a concurring opinion, written by Trump appointee Amy Coney Barrett, was quickly noticed by commentators for including a possible carve-out that might catch companies like TikTok, whose parent company is the Chinese company ByteDance.

“Justice Barrett hinting how she might resolve TikTok's lawsuit,” posted @fedjudges on X, pointing to a section in Barrett’s analysis discussing free speech protections for corporations.

“With TikTok case looming, notable that Justice Barrett goes out of her way to discuss foreign ownership of a social-media platform,” posted Bloomberg Intelligence analyst Matthew Schettenhelm, pointing to the same section.

“Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves,” noted Barrett in her opinion, citing the Citizens United precedent. “But foreign persons and corporations located abroad do not.”

Barrett explained why the court was deciding to remand the case to the lower courts by discussing the complicated ways companies use algorithms to moderate and serve content to users. 

She wrote that algorithmic decisions cut off humans from many moderation decisions on platforms, which could complicate the provision in the Florida and Texas laws to provide users with explanations for every decision.

But she also wrote that in the case of foreign-owned corporations, the picture might be clearer.

“[A] social-media platform’s foreign ownership and control over its content moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny,” Barrett wrote. “What if the platform’s corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.”

TikTok didn’t immediately respond to questions about the company’s position on the implications of the opinion.

After Congress passed a law in April requiring ByteDance to sell TikTok within a year, the company sued the government over the law, calling it unconstitutional. The company sued on numerous First Amendment grounds, which Barrett may have intimated do not factor into the case.

That case is expected to be argued in front of the U.S. Court of Appeals in D.C. in September.

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