The First Amendment’s 2025 starts with legal fireworks. There is a major First Amendment case involving the potential end to social media powerhouse TikTok’s availability in the United States.
TikTok ban looms in the U.S.
The U.S. Supreme Court has agreed to hear arguments on Jan. 10 on the looming ban on TikTok’s availability to users in the United States, set to go into effect on Jan. 19, 2025. The court, in taking the case, said that it won’t decide on any temporary delay in enforcing the law until it hears the oral arguments.
The Protecting Americans from Foreign Adversary Controlled Applications Act will make it illegal for TikTok to operate in the U.S. unless the domestic version of the worldwide app is sold by its China-based owner ByteDance.
TikTok has 170 million U.S. users. It is a short-form video-sharing app and among the most popular online operations globally. After the deadline, online app stores and internet services could face hefty fines for providing access to or for hosting TikTok.
In early December, a three-judge panel in the U.S. Court of Appeals for the District of Columbia upheld the ban. “The First Amendment exists to protect free speech in the United States,” Judge Douglas Ginsburg wrote for the panel. “Here the government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.”
The appeal of that decision sets up a Supreme Court collision between a right first confirmed by the court in a religious liberty decision in 1943 establishing that freedom of speech includes the right to receive information, versus decisions by the justices as far back as 1891 that the First Amendment (and the entire U.S. Constitution) does not apply to foreign corporations, or to citizens of other nations unless they are physically in the United States.
The government has said there is a national security threat due to Chinese ownership because the app collects large amounts of user data, including viewing habits, and that TikTok’s operating algorithm could be used by China to shape content without users being aware they are being manipulated.
TikTok’s lawyers have said the First Amendment does protect the company’s United States subsidiary. Also, they say that the government violated the U.S. subsidiary’s free speech rights by targeting the app for its content and for not making a sincere effort to negotiate new safeguards on the app to address both the national security and manipulation concerns.
President-elect Donald J. Trump could also step into the dispute, following through on campaign promises to “save” TikTok from the ban, despite trying to shut down the app during his first presidential term. The law does contain a potential 90-day delay in going into effect, but that originally was intended to allow more time for completing a late-pending sale.
Trump has said he considers TikTok a potential security risk but also that it is needed as a competitor to Facebook. Members of Trump’s transition team have said the ban is an overly broad reaction by Congress when there are other less-drastic solutions available — for example, more user protection and greater oversight by the U.S. government of TikTok operations — than a forced sale of the U.S. TikTok subsidiary.
Religious affiliated organizations and taxes
The Supreme Court agreed in mid-December to decide whether the Catholic Charities Bureau of the Diocese of Superior in Wisconsin should be exempt from Wisconsin’s unemployment tax system, which could affect the tax status of such groups nationwide.
The Charities group argues that it is exempt from such taxes as part of the First Amendment’s protection of freedom of religion. The Wisconsin Supreme Court rejected that argument. It said the Charities operations are secular humanitarian programs to assist the poor, older adults and those with disabilities. Employees do not have to be Catholic, and there is no religious training or education involved.
Religious liberty and schools
Conflict over state government mandates for the posting in public schools of the Ten Commandments is likely to continue in the new year.
In November, a federal district court temporarily blocked a new Louisiana requirement that the Ten Commandments be displayed in every public classroom by Jan. 1, 2025. The temporary injunction prevents enforcement of the law while a promised appeal by the state is pending.
In Oklahoma, a state legislator introduced legislation in early December to require public schools to display posters containing the Ten Commandments in every classroom. The law anticipates the posters would be donated by private citizens or groups and not funded by the state. In June, Oklahoma Schools Superintendent Ryan Walters ordered the Ten Commandments and other such religiously affiliated documents be displayed or used in public school classrooms. His authority for such an order has been challenged.
An appeal is pending for an Indiana music teacher who states his religious beliefs conflict with a school system requirement that teachers refer to transgender students with names and pronouns that students and their parents requested. John Kluge has said he will appeal to the U.S. Supreme Court a ruling by the U.S. Seventh Circuit Court of Appeals upholding a lower court decision against him. The teacher in the Brownsburg Community School Corporation in Indiana initially sought and obtained a religious exemption from the school district — later rescinded — to use only the last names of all students in class and to transfer the distribution of school orchestra uniforms to another staff member. The appeal states that "affirming transgenderism" violates his Christian faith, that the use of such terms would be a "dangerous lie," and that such a religious accommodation "would allow him to stay neutral on transgender issues and focus on teaching music." The school board rescinded the exemption following complaints from some teachers and parents, saying the accommodation was harming students and having a negative effect on the school's learning environment.
Social media regulation
Expect the wide-ranging debate over government regulation of social media to continue across a variety of issues.
Court challenges remain pending to Texas and Florida laws that would prevent social media platforms from restricting a user or post based on the viewpoint being expressed.
Moody v. NetChoice LLC looks at Florida Senate Bill 7072, which prohibits large social media platforms from banning political candidates or “journalistic enterprises” and from deleting or minimizing the visibility of posts by or about them, among other provisions.
NetChoice LLC v. Paxton looks at Texas House Bill 20, which prohibits large social media platforms from taking any action to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression” in user posts. The law also requires these platforms to notify users and the government about how they moderate content.
The U.S. Court of Appeals for the 11th Circuit barred Florida from enforcing most of its law, while the 5th Circuit Court of Appeals upheld the Texas law. The Supreme Court said both circuits had failed to use a proper First Amendment analysis in considering the cases, and on July 1, sent both back to the appellate courts for additional review.
On the states level, California’s state legislature will consider a proposal introduced in late 2024 to require social media companies to put a warning label on content to disclose mental health risks. The bill follows an open letter to Congress signed by 42 attorneys general in support of a surgeon general’s warning label on social media. The warning would be similar to those on tobacco products. The social media warning was proposed in June by U.S. Surgeon General Vivek Murthy.
Flag desecration
Trump promised voters that he would move to establish penalties for desecration of the U.S. flag. “I want to get a law passed,” Trump said at the National Guard Association conference in Michigan on Aug. 24. “You burn an American flag, you go to jail for one year. We gotta do it.” Trump added, “They say, ‘Sir, that’s unconstitutional.’ We’ll make it constitutional.”
U.S. Supreme Court decisions more than 30 years ago said flag desecration — however unpopular — is a form of protected speech. Those decisions could be voided by a new Supreme Court ruling or by an amendment to the U.S. Constitution.
Defamation lawsuits
Two U.S. Supreme Court justices have called for revising a 1964 decision, New York Times Co. v. Sullivan, which makes it difficult for public officials and public persons to successfully sue news operations or others for libel or slander.
Sullivan requires them to prove “actual malice” to win a lawsuit. “Actual malice” is defined as publishing or making a false statement about someone while knowing it is not true or with reckless disregard to the statement’s truthfulness.
Justice Clarence Thomas has said there is no historical legal basis for the Sullivan decision, and Justice Neil Gorsuch has written that given changes over 60 years in the nature of the news media and the pervasive reach of social media and online search engines, it should be easier for at least public figures to win defamation cases.
Free speech
On Dec. 5, Thomas — in a rare action overriding an earlier refusal by Justice Elena Kagan — agreed to have the justices consider whether to accept a case involving a Washington state medical commission’s attempt to limit a doctor’s speech in a public forum. The case involves a claim of professional misconduct brought in 2022 against a physician for what the commission said was spreading COVID-19 misinformation in newspaper columns he wrote.

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum.