Supreme Court justices posed tough questions to the lawyer representing TikTok and its Chinese parent company, ByteDance, on Friday over a law that would force a sale or ban the widely used short-video app by Jan. 19 in the United States in a case that pits free speech rights against national security concerns.
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.
TikTok, ByteDance and the app users appealed a lower court’s ruling that upheld the law and rejected their argument that it violates the U.S. Constitution’s First Amendment protection against government abridging 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 Jan. 20, opposes the ban, though that wasn’t always the case in his first four years as president.
Is TikTok really a national security threat, or is the U.S. unfairly picking on a Chinese-owned company? The National’s Ian Hanomansing asks digital security watchers Christian Leuprecht and Julia Angwin to break down the pros and cons of a potential ban.
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.
Francisco told conservative Justice Brett Kavanaugh that on that date “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 does not take office until Jan. 20, Francisco said.
“It is possible that come Jan. 20th, 21st or 22nd, we might be in a different world,” Francisco said, 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 Justice Amy Coney Barrett, Francisco said it could take “many years” for ByteDance to divest TikTok.
Francisco, once solicitor general in the Trump administration, cited the president-elect’s stance on the case.
He 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.”
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.
Trump on Dec. 27 called on the Supreme Court to put a hold on the Jan. 19 deadline for divestiture to give his incoming administration “the opportunity to pursue a political resolution of the questions at issue in the case.”
Not a ‘direct burden’ on free speech: chief justice
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 U.S. population.
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.”
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.”
Roberts characterized that as “not a direct burden” on free speech.
Government raises concerns about spycraft
U.S. Solicitor General Elizabeth Prelogar, arguing for the Biden administration, said Chinese government control of TikTok poses a grave threat to U.S. national security. TikTok’s immense data set on its U.S. users and their non-user contacts gives the China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government “could weaponize 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,” she 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 U.S. employees.
Francisco told conservative Justice Barrett that TikTok’s algorithm represents editorial discretion.
The head of Canada’s intelligence agency CSIS says Canadians should stay away from TikTok because it poses a data security risk. He says it’s very clear from the app’s design that Canadian data is available to the government of China.
But Justice Clarence Thomas challenged Francisco’s argument that TikTok’s U.S. 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.
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 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.”