Supreme Court justices question TikTok’s free speech arguments ahead of potential ban

Supreme Court justices posed tough questions to a lawyer representing TikTok and its Chinese parent company ByteDance on Friday over a law that would force the sale or ban of the widely used short-form video app by January 19 in the United States in a case that pits free speech rights against concerns… National security.

TikTok and ByteDance, as well as some users who post content on the app, 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 delved into the nature of TikTok’s expression rights and the government’s concerns about national security — that the app would enable the Chinese government to spy on Americans and conduct covert influence operations.

TikTok, ByteDance and app users appealed a lower court ruling that upheld the law and rejected their argument that it violated the U.S. Constitution’s First Amendment protections against the government restricting free speech.

The Supreme Court’s consideration of the case comes at a time when trade tensions are escalating between the world’s two largest economies. Republican Donald Trump, who is scheduled 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.

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 will essentially be shut down on January 19.

Francisco told conservative Justice Brett Kavanaugh that on that date “at least as I understand it, we (TikTok) will go dark. Essentially, the platform will be shut down unless there is a divestiture, unless President Trump exercises his authority to extend it.” Francisco said Trump will not take office until January 20.

“It’s possible that by January 20, 21 or 22, we might be in a different world,” Francisco said, which he described as one reason the justices are issuing a temporary stay on the law to “buy everyone a little bit.” A little breathing room.”

In response to Justice Amy Coney Barrett, Francisco said it could take “many years” for ByteDance to divest TikTok.

Francisco, who was Trump’s attorney general, cited 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 critically important issue and, for the reasons the President-elect has explained, potentially debate the issue.”

Conservative Justice Samuel Alito also raised the possibility of the court issuing a so-called administrative stay that would temporarily suspend the law while the justices decide how to proceed.

On December 27, Trump called on the Supreme Court to postpone the January 19 deadline for divestment to give his next administration “the opportunity to pursue a political solution to the issues in the case.”

Not a ‘direct burden’ on freedom of expression: 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 US population.

The real target of the law, Francisco said, “is the rhetoric itself — this fear that Americans, even if they are fully informed, could be persuaded by Chinese disinformation. However, that is a decision that the First Amendment leaves up to the people.”

Referring to ByteDance, liberal Justice Elena Kagan told Francisco that the law “only targets this foreign company, which has no First Amendment rights.”

Conservative Chief Justice John Roberts pressed Francisco on TikTok’s Chinese ownership and congressional findings.

“Are we supposed to 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 here of Congress — which is Chinese manipulation of content and acquisition and collection of content.”

Roberts described this as “not a direct burden” on freedom of expression.

The government raises concerns about espionage

US Attorney Elizabeth Prelogar, who is defending the Biden administration, said the Chinese government’s control of TikTok poses a serious threat to US national security. Prelogar said TikTok’s massive data set on its American users and their non-user contacts gives China a powerful tool for harassment, recruitment and espionage, and its government can “weaponize TikTok at any time to harm the United States.”

The First Amendment does not prevent Congress from taking steps to protect Americans and their data, Prelogar said.

“The harm to national security arises from the fact that a foreign adversary can covertly manipulate the platform to achieve its geopolitical goals in whatever form this type of covert operation may take,” she said.

The platform’s powerful algorithm feeds individual users with short videos tailored to their liking. TikTok said the ban would hurt its user base, advertisers, content creators and employee talent. TikTok has 7,000 US employees.

Francisco told conservative Justice Barrett that TikTok’s algorithm represents editorial discretion.

But Justice Clarence Thomas challenged Francisco’s argument that TikTok’s US operations have free speech rights.

“You’re turning restrictions on ByteDance’s ownership of the algorithm and company into restrictions on TikTok’s speech. So why can’t we simply look at it as a restriction on ByteDance?” Thomas asked.

The Justice Department said the law targets control of the app by a foreign adversary, not protected expression, and that TikTok can continue to operate as it is if it is freed from China’s control.

Francisco stressed the impact of allowing Congress to ban TikTok — “which means the government can really come in and say, ‘I’m going to shut down TikTok because it’s too pro-Republican or too pro-Democrat, or it won’t spread it.’” The speech I want, which won’t be subject to First Amendment scrutiny by anyone.