Last week, the Supreme Court unanimously affirmed the constitutionality of a federal law that bans the distribution of TikTok in the United States unless and until it is sold to a new owner. The Court upheld the law after applying a remarkably deferential version of the intermediate scrutiny standard that courts apply in First Amendment cases to content-neutral regulations of speech.

That the Court applied intermediate scrutiny to a law that was not only motivated but affirmatively justified by lawmakers’ concern with the mix of content displayed on TikTok—as well as by concerns with Americans’ data privacy—is deeply problematic. More problematic, however, is the fact that seven of the justices expressed significant doubt that the law had to satisfy even that relatively lax standard. Because the law required only that TikTok be sold to a new owner for it to be able to continue to operate in the United States, they argued, it wasn’t properly speaking a speech regulation at all. It was a regulation of corporate control that only indirectly burdened expressive interests, and therefore did not necessarily implicate the First Amendment.

Given that the Court ultimately assumed, for the sake of argument, that the First Amendment did apply, it would be easy enough to gloss over this part of the decision. But it is a truly incredible fact, and one we should not ignore, that a super-majority of the justices on what some have described as “the most speech-protective Court in memory” were not sure whether the First Amendment provided any protection against a law that threatened to shut down a social media platform used by something like 170 million Americans to speak, listen, and associate simply because the law also allowed for divestment. If the government were to threaten Elon Musk or Mark Zuckerburg—or for that matter, Arthur Sulzberger—with the forced sale or shutdown of X, Facebook, or the New York Times unless they sold these businesses to a buyer whom President Trump approved, we would all hopefully recognize that it would imperil the First Amendment rights not only of the owners but of us all. Nevertheless, in TikTok v. Garland, seven members of the Court suggested otherwise.

Read more at The Law and Political Economy Project