In a critical session, the U.S. Supreme Court seems inclined to uphold the controversial ban on TikTok due to concerns over its connection to China. During over two hours of oral arguments, justices voiced skepticism about whether the law that mandates TikTok’s Chinese parent company, ByteDance, divest from the platform truly raises First Amendment concerns. Instead, they appeared to view the law as an effort to control potential foreign influence on an app used by millions of Americans.
The law, passed by Congress in April, would restrict TikTok’s operations in the U.S. unless ByteDance sells the app. Set to take effect on January 19, it could be blocked temporarily by the Court if justices intervene. A decision could come swiftly, before the Court addresses the broader issue of free speech protections related to the app.
Both former President Donald Trump and current President Joe Biden have expressed concerns about TikTok’s data collection practices and the potential for content manipulation. TikTok has strongly rejected these claims, arguing they are speculative and denying that the Chinese government controls what content appears on the app. The following are key takeaways from the oral arguments:
Roberts Questions First Amendment Relevance
The majority of justices expressed doubt about whether the First Amendment even applies in this case. Chief Justice John Roberts questioned TikTok’s argument, emphasizing that Congress was focused not on restricting expression but on addressing the national security risk posed by the app’s connection to a foreign adversary. “They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok,” Roberts said.
Roberts further probed TikTok’s lawyer, questioning whether there was any precedent for striking down a law that regulates a company’s corporate structure based on First Amendment grounds. Justice Elena Kagan echoed these concerns, suggesting that the law targets a foreign company that doesn’t have First Amendment rights. “The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights,” Kagan noted.
Kavanaugh Highlights National Security Risks
Justice Brett Kavanaugh and other conservative justices appeared more focused on national security concerns, a domain where the Court has traditionally deferred to the other branches of government. Solicitor General Elizabeth Prelogar, representing the Biden administration, argued that TikTok’s vast data collection on Americans posed a significant national security threat. “For years, the Chinese government has sought to build detailed profiles about Americans – where we live and work, who our friends and coworkers are, what our interests are and what our vices are,” Prelogar said.
Kavanaugh seemed particularly swayed by these arguments, stressing that the information TikTok collects could be used for espionage or blackmail. “China was accessing information about millions of Americans – tens of millions of Americans – including teenagers, people in their twenties,” Kavanaugh said. He expressed concerns that this data could be exploited by China to manipulate individuals in positions of power, such as future members of the FBI or the CIA.
Gorsuch and Kagan Express Concerns About Ban
Justice Neil Gorsuch, who often champions First Amendment rights, raised concerns about the sweeping nature of the ban. He suggested that the appropriate remedy for problematic speech might not be a ban but rather counter-speech or a warning label. “Don’t we normally assume that the best remedy for problematic speech is counter speech?” Gorsuch asked. He further noted that TikTok had proposed a solution, saying the platform could add a disclaimer indicating potential Chinese manipulation.
Gorsuch also posed a hypothetical scenario to the Court, questioning whether the government could shut down a foreign-owned newspaper on the same grounds. Prelogar countered that social media platforms like TikTok differ from traditional media because of their interactive nature, where users are influenced by algorithms rather than receiving one-way communication, as with newspapers.
Justice Kagan also voiced concerns, drawing parallels to the U.S. government’s historical tolerance of foreign propaganda. She referred to the Cold War era, when communist propaganda potentially tied to the Soviet Union was freely distributed in the U.S. “You know, in the mid-20th century, we were very concerned about the Soviet Union, and what the Soviet Union was doing in this country,” Kagan remarked, questioning whether Congress would have been right to demand the Communist Party sever ties with the Soviet Union at the time.
TikTok’s Future on January 19
Unless the Supreme Court intervenes, TikTok is set to be banned in the U.S. starting January 19. TikTok’s attorney, Noel Francisco, stated that the app would “go dark” if the law takes effect, with the potential for the app to be removed from app stores and no longer accessible for new downloads. While current users could still access the app, it would become increasingly vulnerable to bugs and security issues due to a lack of updates from the app stores. Francisco, a former solicitor general, warned of far-reaching consequences for service providers that continue to support TikTok in violation of the law.
However, even if the Court upholds the ban, there remains uncertainty about TikTok’s future. Francisco noted that former President Trump, who once expressed support for saving TikTok, could potentially alter the timeline for the divestiture requirement, particularly after January 19. “It is possible that come January 20th, 21st, 22nd, we might be in a different world,” Francisco said.
Trump’s Influence on the Case
Despite not being in office at the time of the arguments, former President Trump made his influence felt by filing a brief urging the Court to delay the ban’s implementation so that he could negotiate with TikTok. Justice Samuel Alito asked whether the Court could grant an administrative stay to pause the law’s implementation. Prelogar acknowledged that the Court had the authority to do so but emphasized that the case had been fully briefed and argued.
As the arguments concluded, Justice Sonia Sotomayor raised concerns about companies relying on promises from a president-elect to ignore laws. “I am a little concerned that a suggestion that the president-elect or anyone else would not enforce the law, when a law is in effect and is prohibitive of certain action, that a company would choose to ignore enforcement on any assurance, other than a change in that law,” she warned.
In conclusion, the justices’ questions and concerns during Friday’s oral arguments suggest a strong possibility that the Court may uphold the TikTok ban due to national security risks. With the law set to take effect on January 19, TikTok’s future in the U.S. hangs in the balance, and the Court’s decision could have lasting implications for the intersection of national security and free speech.