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Supreme Court justices asked tough questions of a lawyer representing TikTok and its Chinese parent company ByteDance on Friday about a law that would force the sale or ban the widely used short video app by Jan. 19 in the United States in a case that pits rights against freedom speaking to the interests of national security.
TikTok and ByteDance, as well as some users who post content on the app, challenged the law, which passed Congress last year with strong bipartisan support and was signed by outgoing Democratic President Joe Biden, whose administration is defending it.
During hearings in the case, the nine justices examined the nature of TikTok’s free-speech rights and the government’s national security concerns — that the app would allow the Chinese government to spy on Americans and conduct covert influence operations.
TikTok, ByteDance and the app’s users appealed a lower court ruling that upheld the law and rejected their claim that it violates the First Amendment to the US Constitution, which protects against government restrictions on free speech.
The Supreme Court is considering the case at a time of growing trade tensions between the world’s two largest economies. Republican Donald Trump, who is set to begin his second term as president on January 20, opposes the ban, although this was not always the case in his first four years as president.
Is TikTok really a national security threat, or is the US unfairly attacking 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 judges that the app is one of the most popular voice platforms for Americans and will effectively shut down on January 19.
Francisco told conservative judge Brett Kavanaugh that on that date, “at least as far as I understand, we (TikTok) are shutting down. Basically, the platform is shutting down unless there’s a sale, unless President Trump uses his authority to extend it.” But Trump doesn’t take office until Jan. 20, Francisco said.
“It’s possible that on January 20, 21 or 22, we’ll be in a different world,” Francisco said, which he called one of the reasons the justices should issue a temporary stay on the law to “buy everybody a little bit of breathing room.”
Answering Judge Amy Coney Barrett, Francisco said it could take “many years” for ByteDance to break free from TikTok.
Francisco, once the top attorney in the Trump administration, outlined the president-elect’s position on the case.
He asked the justices to at least temporarily suspend the law, “which will allow you to carefully consider this important issue and, for reasons explained by the president-elect, potentially challenge the case.”
Conservative Justice Samuel Alito also raised the possibility of the court issuing a so-called administrative stay that would temporarily put the law on hold while the justices decide how to proceed.
On Dec. 27, Trump urged the Supreme Court to delay the Jan. 19 forfeiture deadline to give his new administration “an opportunity to pursue a political resolution of the issues in the case.”
Not a ‘direct burden’ on free speech: Chief Justice
The Supreme Court weighed competing concerns — about free speech rights and the national security implications of a foreign-owned social network that collects data from a domestic user base of 170 million Americans, about half the US population.
Francisco said the real target of the bill is “speech itself — that fear that Americans, even if fully informed, might be persuaded by Chinese disinformation. 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 aimed at this foreign corporation, which has no First Amendment rights.”
Conservative Chief Justice John Roberts pressed Francisco on TikTok’s Chinese ownership and congressional findings.
“Should we ignore the fact that the ultimate parent is actually subject to doing intelligence work for the Chinese government?” Roberts asked. “It seems to me that you are ignoring the main concern of Congress here – which is China’s manipulation of content and the acquisition and harvesting of content.”
Roberts described it as “not a direct burden” on free speech.
The government expresses concern about espionage
US Attorney General Elizabeth Prelogar, speaking for the Biden administration, said the Chinese government’s control over TikTok poses a serious threat to US national security. TikTok’s vast trove of data on American users and their non-user contacts gives China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government “can weaponize TikTok at any time to harm the United States.”
Prelogar said the First Amendment does not prevent Congress from taking steps to protect Americans and their data.
“The harm to national security stems from the very fact of a foreign adversary’s ability to covertly manipulate the platform to advance its geopolitical goals in any form of that type of covert operation,” she said.
The platform’s powerful algorithm provides individual users with short videos tailored to their preferences. TikTok said the ban would hit its user base, advertisers, content creators and employee talent. TikTok has 7,000 American employees.
Francisco told conservative Justice Barrett that TikTok’s algorithm represented 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 is very clear from the design of the app that Canadian data is available to the Chinese government.
But Judge Clarence Thomas challenged Francisco’s argument that TikTok has free speech rights in its US operations.
“You’re turning a restriction on ByteDance’s ownership of the algorithm and the company into a restriction on TikTok’s speech. So why can’t we just see it as a restriction on ByteDance?” asked Thomas.
The Justice Department said the law targets control of the app by a foreign adversary, not protected speech, and that TikTok would be able to continue operating as is if freed from China’s control.
Francisco emphasized the impact of allowing Congress to ban TikTok — “which means the government could really come in and say, ‘I’m going to shut down TikTok because it’s too pro-Republican or too pro-Democrat, or it’s not going to spread the speech that I want, and that wouldn’t be possible by any review of the First Amendment.”
