Supreme Court skeptical of ban on TikTok

ARGUMENT ANALYSIS

The Supreme Court was split on Friday over the constitutionality of a federal law that would require social media giant TikTok to shut down in the United States unless its Chinese parent can sell it by January 19. During two hours of oral arguments, judges raised questions about whether the law at the center of the case actually limits TikTok’s freedom of expression, as well as about what will happen if there is no sale by the deadline.

Citing national security concerns, Congress passed the law at the center of the case, the Protecting Americans from Foreign Controlled Applications Act, in 2024 as part of a package to provide aid to Ukraine and Israel. The law identifies China and three other countries — North Korea, Russia and Iran — as “foreign adversaries” of the United States and bars the use of apps controlled by those countries. The law also defines applications controlled by foreign adversaries to include any app operated by TikTok or ByteDance.

TikTok and a group of its users went to a federal court in Washington, DC, to challenge the law, claiming it violates the First Amendment. The U.S. Court of Appeals for the District of Columbia Circuit rejected this argument and declined to put the law on hold, reasoning that the law was “the culmination of extensive, bipartisan action by Congress and by successive presidents.” Moreover, Senior Justice Douglas Ginsburg added that the law was “carefully crafted to deal only with control by a foreign adversary and was part of a broader effort to address a well-substantiated national security threat posed by the People’s Republic of China.”

TikTok and its users then came to the Supreme Court last month, asking the judges to step in. TikTok told the judges that the government’s national security claim was speculative and that the law should not stand. The justices agreed on Dec. 18 to expedite briefing in the case and hear oral arguments on Jan. 10 — nine days before the law was set to take effect.

Lawyers for President-elect Donald Trump, who has changed his stance on such a ban since he was last in office and currently opposes shutting down TikTok, did not appear in court Friday. In a “friend of the court” brief filed in late December, Trump urged the justices to delay the ban’s effective date to give his administration an opportunity to “pursue a negotiated settlement” when it takes office on Jan. 20.

As a representative for TikTok, Noel Francisco — who served as the U.S. attorney general during the first Trump administration — emphasized that the dispute over the law “boils down to speech.” Congress was concerned, he told the justices, that ideas on TikTok’s platform could persuade Americans. But one pillar of the First Amendment, he said, is that the government cannot restrict speech to protect speech.

Jeffrey Fisher, who represents the group of TikTok users, added that the law directly limits his clients’ First Amendment right to participate in a “modern public square.” Limiting speech because it could cast doubt on American leaders, he stressed, “is what our enemies do.”

But US Attorney General Elizabeth Prelogar countered that the Chinese government’s control of TikTok “poses a serious threat to national security.” She pointed both to the possibility that the Chinese government could secretly manipulate content on TikTok and to the risk that TikTok’s “huge data sets would give the People’s Republic of China a powerful tool” for harassment and espionage.

Millions of Americans, Prelogar acknowledged, enjoy expressing themselves on TikTok. But they can still continue to do that, even if ByteDance sells the American company.

However, some justices were not convinced that the law necessarily raises a First Amendment issue. Judge Clarence Thomas asked Francisco how limiting ByteDance’s ownership of TikTok created restrictions on TikTok’s speech.

Justice Elena Kagan echoed Thomas’ skepticism. If the law only targets ByteDance, which has no First Amendment rights because it is a foreign corporation, she asked Francisco, how does that implicate TikTok’s First Amendment rights? TikTok can still use whatever algorithm it wants, Kagan noted.

Justice Amy Coney Barrett also seemed to agree at times. The law simply requires ByteDance to divest TikTok. A shutdown of TikTok, she suggested, would be the consequence of ByteDance’s choice not to.

Other judges appeared to be persuaded by the government’s invocation of national security concerns. Chief Justice John Roberts noted that although Francisco claimed that TikTok is a US corporation, Congress had concluded that the “ultimate corporation that controls” TikTok is subject to Chinese laws, including an obligation to assist the Chinese government with intelligence work. “Should we ignore it,” Roberts asked?

Judge Brett Kavanaugh noted the government’s claim that China is using TikTok to access information about millions of American citizens, and especially young people, and could in the future use that information to try to recruit spies or manipulate future US officials. That “looks like a huge concern for the future of” the United States, Kavanaugh noted.

However, Justice Elena Kagan was more skeptical of the government’s argument that the law is necessary to prevent China from secretly manipulating content on TikTok. She pressed Prelogar on what it meant that the manipulation was “hidden”. All social media platforms – and not just TikTok – are “a bit of a black box” in terms of the difficulty of understanding why certain content appears at a certain time. And to the extent that Prelogar argued that it wasn’t clear that the Chinese government could influence the content on TikTok behind the scenes, Kagan responded: “everyone now knows that China is behind it.”

Both TikTok and its users made a related point. They argued that even if Congress had a compelling interest in preventing China from covertly manipulating content, it could have done so using less draconian methods than shutting down the company entirely — for example, requiring TikTok to disclose the possibility for such manipulation to its users. .

Fisher pointed the justices to what he characterized as a “longstanding tradition” of similar disclosures: the Foreign Agents Registration Act, which requires anyone seeking to influence US policy on behalf of a foreign government to register with the Justice Department.

Judge Neil Gorsuch appeared to agree, suggesting Prelogar was merely “paternalistic” to shut down TikTok to avoid concerns about content manipulation. “Isn’t the best means of speech,” he asked, “counter-speech?”

Judge Ketanji Brown Jackson wondered aloud whether requiring TikTok to disclose the potential for content manipulation could itself create its own First Amendment problems.

Francisco acknowledged that disclosures would not be “perfect” but that they would be better than shutting down the platform entirely.

Fisher similarly pushed back against the government’s claims that the law is needed to protect against China’s collection of data from its American users. The law is primarily aimed at combating covert manipulation of content, he argued. But in any case, Fisher continued, if Congress was really concerned about the “very dramatic risk” of data collection, it could have banned data sharing or extended the law to other sites — such as Shein and Temu — that also collect data from their users. And, Fisher noted, even if TikTok shuts down, ByteDance will still be able to keep the user data it has already collected.

Prelogar resisted any suggestion that a ban on data sharing would be a less restrictive way to address congressional concerns about data privacy. TikTok and ByteDance never indicated they could create a firewall between US users’ data and the Chinese government, she said, dismissing ByteDance as “not a trusted partner.”

With the law’s Jan. 19 effective date, the judges pressed lawyers on what will happen if (as expected) ByteDance doesn’t sell TikTok.

Francisco told the judges that TikTok would “go dark” in the US. Echoing Trump’s brief in the case, he argued that it would make “perfect sense to issue a preliminary injunction and buy a little breathing room for everybody.”

Prelogar countered that ByteDance was playing a “game of chicken,” hoping it could stave off the law’s effective date either in the courts or in the executive branch. But she emphasized that restrictions on TikTok could be lifted as soon as ByteDance sells it — which might be “just the push” ByteDance needs to move forward. TikTok and ByteDance have “been paying attention since 2020,” she emphasized.

Prelogar added that there was no basis for the Supreme Court to file a preliminary injunction blocking the law unless it believes that TikTok is ultimately likely to succeed on its challenge to the law.

The justices are likely to act quickly in this case given the January 19 statutory deadline.

This article was originally published on Howe on the Court.