TikTok and ByteDance, as well as some users who post content on the app, have challenged a law passed by Congress with strong bipartisan support last year and signed by outgoing Democratic president Joe Biden, whose administration is defending it.
During arguments in the case, the nine justices probed the nature of TikTok’s speech rights and the government’s concerns over national security – that the app would enable China’s government to spy on Americans and carry out covert influence operations.
Conservative justice Samuel Alito also floated the possibility of the court issuing what is called an administrative stay that would put the law on hold temporarily while the justices decide how to proceed.
TikTok, ByteDance and the app users appealed a lower court’s ruling that upheld the law and rejected their argument that it violates the US Constitution’s First Amendment protection against government abridgment of free speech.
The Supreme Court’s consideration of the case comes at a time of rising trade tensions between the world’s two biggest economies. Republican Donald Trump, due to begin his second term as president on January 20, opposes the ban.
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Noel Francisco, a lawyer for TikTok and ByteDance, told the justices that the app is one of the most popular speech platforms for Americans and that it would essentially shut down on Jan. 19 without a divestiture. Francisco said the real target of the law “is the speech itself – this fear that Americans, even if fully informed, could be persuaded by Chinese misinformation. That, however, is a decision that the First Amendment leaves to the people.” “In short, this act should not stand,” Francisco said of the law.
Francisco cited Trump’s stance on the case.
Trump on December 27 called on the Supreme Court to put a hold on the January 19 deadline for divestiture to give his incoming administration “the opportunity to pursue a political resolution of the questions at issue in the case.”
Francisco asked the justices to, at a minimum, put a temporary hold on the law, “which will allow you to carefully consider this momentous issue and, for the reasons explained by the president-elect, potentially moot the case.”
The Supreme Court was weighing competing concerns – about free speech rights and about the national security implications of a social media platform with foreign owners that collects data from a domestic user base of 170 million Americans, about half the US population.
Referring to ByteDance, Liberal Justice Elena Kagan told Francisco that the law “is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
Conservative Chief Justice John Roberts pressed Francisco on TikTok’s Chinese ownership and the findings of Congress.
“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Roberts asked. “It seems to me that you’re ignoring the major concern here of Congress – which was Chinese manipulation of the content and acquisition and harvesting of the content.”
“Congress doesn’t care about what’s on TikTok,” Roberts added. “… They’re not saying, ‘TikTok has to stop.'” Instead, Roberts said, Congress was saying China must stop controlling TikTok.
“So it’s not a direct burden” on free speech, Roberts added.
‘Geopolitical goals’
US solicitor general Elizabeth Prelogar, arguing for the Biden administration, said Chinese government control of TikTok poses a grave threat to American national security. TikTok’s immense data set on its American users and their non-user contacts gives the China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government “could weaponise TikTok at any time to harm the United States.”
Prelogar said the First Amendment does not bar Congress from taking steps to protect Americans and their data.
“The national security harm arises from the very fact of a foreign adversary’s capacity to secretly manipulate the platform to advance its geopolitical goals in whatever form that kind of covert operation might take,” Prelogar said.
The platform’s powerful algorithm feeds individual users short videos tailored to their liking. TikTok has said that the ban would hit its user base, advertisers, content creators and employee talent. TikTok has 7,000 US employees.
Prelogar said the January 19 deadline could finally force ByteDance to seriously begin the process of divesting Tiktok.
Conservative justice Clarence Thomas asked Francisco what is TikTok’s speech at issue in the case.
“TikTok, you honor, uses an algorithm that, in its view, reflects the best mix of content. What the act does is it says TikTok cannot do that unless ByteDance executes a qualified divestiture. That’s a direct burden on TikTok’s speech,” Francisco said.
Francisco told conservative Justice Amy Coney Barrett that the algorithm represents editorial discretion.
Thomas challenged Francisco’s argument that TikTok’s US operations have free speech rights.
“You’re converting the restriction on ByteDance’s ownership of the algorithm and the company into a restriction on TikTok’s speech. So why can’t we simply look at it as a restriction on ByteDance?” Thomas asked.
‘Go dark’
Kagan noted that TikTok does have First Amendment rights.
“I guess my question is: how are those First Amendment rights really begin implicated here?” Kagan asked Francisco. “This statute says the foreign company has to divest. Whether or not that’s feasible, however long it takes, TikTok still has the ability to use whatever algorithm it wants, doesn’t it?”
“No, you honor,” Francisco responded, noting the looming deadline.
“In 10 days, TikTok wants to speak. In 10 days, because this law was passed, TikTok cannot speak unless ByteDance executes a qualified divestiture,” Francisco said.
On January 19, Francisco told conservative Justice Brett Kavanaugh that “at least as I understand it we (TikTok) go dark. Essentially, platform shuts down unless there’s a divestiture, unless President Trump exercises his authority to extend it.” But Trump could not do that on Jan. 19 because he does not take office until the following day, Francisco said.
“It is possible that come Jan. 20th, 21st or 22nd, we might be in a different world,” Francisco added, which he called one of the reasons why the justices should issue a temporary pause on the law to “buy everybody a little bit of breathing space.”
Responding to Barrett, Francisco said it could take “many years” for ByteDance to divest TikTok.
The Justice Department has said the law targets control of the app by a foreign adversary, not protected speech, and that TikTok could continue operating as-is if it is freed from China’s control.
Francisco raised a hypothetical that if the Chinese government had taken the children of Washington Post owner Jeff Bezos hostage to force him and his newspaper to publish “whatever they wanted on the front page of the Post, so China effectively has total control.”
“I still don’t think that Congress could come in and tell Bezos either sell the Post, or shut it down, because that would violate Bezos’ rights and the Washington Post’s rights,” Francisco said.
Francisco emphasized the impact of allowing Congress to ban TikTok – “which means that the government really could come in and say, ‘I’m going to shut down TikTok because it’s too pro-Republican or too pro-Democrat, or won’t disseminate the speech I want, and that would get no First Amendment scrutiny by anybody. That cannot possibly be the case.”