Supreme Court seems likely to uphold law to sell or ban TikTok

The Supreme Court appears likely to uphold a federal law that would effectively shut down TikTok in the United States in less than two weeks unless the popular video-sharing platform divests from Chinese ownership.

A majority of justices from across the ideological spectrum suggested on Friday during more than 2½ hours of oral arguments that the government’s interest in national security justified some restrictions on free speech. They particularly seemed to embrace Congress’s concern about the Chinese government covertly using the app to collect vast amounts of sensitive data about millions of American users and to potentially exploit that information to blackmail young Americans or turn them into spies.

Chief Justice John G. Roberts Jr. asked the lawyer representing TikTok about Chinese government influence over TikTok’s parent company ByteDance: “Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?”

“That seems like a huge concern for the future of the country,” Justice Brett M. Kavanaugh later added.

The company and a group of TikTok creators had asked the justices to quickly block the law before the Jan. 19 deadline that Congress set for China-based ByteDance to sell the platform, which has more than 170 million users in the United States.

While the justices acknowledged the serious free speech implications for millions of Americans if the platform goes dark this month, several emphasized that foreign entities do not have First Amendment rights and that the site could continue to operate in a similar manner, but under different, non-Chinese ownership.

Justice Ketanji Brown Jackson suggested to TikTok’s lawyer that he was “wrong about the statute being read as saying, TikTok, you have to go mute, because TikTok can continue to operate on its own algorithm, on its own terms, as long as it’s not associated with ByteDance.”

Throughout the argument, there were nods to the imminent change in administration and what implications that might have for the law, which President Joe Biden signed in April after Congress passed it with bipartisan support.

The deadline for TikTok to divest falls on Jan. 19, one day before the inauguration of President-elect Donald Trump, who promised during his campaign to “save TikTok.” The company’s attorney, Noel Francisco, asked the justices to temporarily put the law on hold to give “everybody a little breathing space” instead of taking what he said would be an unprecedented step to silence the voices of more than half of Americans who share, view and engage with content on TikTok.

Ahead of Friday’s argument, Trump’s attorneys had also asked the Supreme Court to delay implementation to give him an opportunity to resolve the issue once he returns to the White House.

But Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said Congress intentionally included the Jan. 19 deadline in the sell-or-ban law to force the company’s hand, adding that the platform could be revived at any time after a divestment from Chinese ownership.

“All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform,” Prelogar said.

The Supreme Court has moved with extraordinary speed in scheduling Friday’s special session to hear the appeal from the company and TikTok creators. The compressed timeline suggests that the justices will probably issue a decision next week about whether the law can take effect as planned. The court could then issue a more extensive written opinion at a later date.

Even if the ban does start Jan. 19, some of the real-world effects will probably take time to emerge.

Under the law, known as the Protecting Americans from Foreign Adversary Controlled Applications Act, app-store giants such as Google and Apple and internet-hosting services could face massive fines if they continue to carry TikTok on their products beyond Jan. 19. Infractions could cost companies $5,000 for each user that continues to access TikTok on their sites, which could add up to billions of dollars in penalties. Even though TikTok would remain on the devices of current users, their lack of access to updates could degrade their use of the site.

The most skeptical questions for the government came from Justices Neil M. Gorsuch and Elena Kagan. Gorsuch suggested that Congress could have addressed its national security concerns with a less sweeping measure. The government’s concerns about “covert content manipulation” and the spreading of propaganda, Gorsuch said, could have been resolved by disclosure requirements, rather than forcing a sale or shutdown.

Referring to the government’s view, he said: “Isn’t that a pretty paternalistic point of view? I mean, don’t we normally assume that the best remedy for problematic speech is counter-speech?”

The lawyers for TikTok and creators who use the site characterized the law as a sweeping restriction on the free speech rights of millions of Americans to engage with video clips about politics, entertainment, cooking and music. Almost 40 percent of young adults in the United States regularly get their news from the site, which became an important platform for both presidential candidates to share videos in the lead-up to the November election.

TikTok and its lawyers have insisted that the platform is comparable to a traditional media outlet exercising editorial discretion over content and say the First Amendment prevents Congress from interfering with those decisions.

The Biden administration, defending the law, acknowledges that TikTok’s signature video-recommendation algorithm and its content-moderation policies are a form of speech. But the government says the law is not a restriction on speech, but rather on control of the app by a nation Congress has deemed a foreign adversary. It maintains that the company has no First Amendment right to be controlled by a foreign adversary or to use an algorithm that the government says is developed, maintained and controlled by a foreign adversary - assertions the company vigorously disputes.

Lawmakers in both parties have expressed concerns about China’s potential influence on the app based on briefings from senior intelligence officials, which have not been shared with the public. Past rulings suggest that national security concerns and the involvement of foreign companies or organizations could have implications for the court’s constitutional analysis.

The justices are reviewing a unanimous decision by the influential U.S. Court of Appeals for the D.C. Circuit to allow the TikTok ban. A three-judge panel sided with the Biden administration in December and said the law does not violate the First Amendment. The panel, made up of judges appointed by presidents in both parties, said the law does not take aim at a particular viewpoint and is a reasonable response to Congress’s national security concerns.

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