Supreme Court upholds looming TikTok ban

The Supreme Court on Friday upheld a federal law banning Chinese-owned social media platform TikTok just two days before a bipartisan divestment law takes effect.

The topic of discussion was the Protecting Americans from Apps Controlled by Foreign Adversaries Act, a law passed by Congress last April with broad bipartisan support. the law He gave TikTok nine months Either divest from its Chinese parent company, ByteDance, or remove it from US-based app stores and hosting services.

In passing the law, Congress cited concerns about the app’s ownership in China, which members said meant the app had Chinese ownership Possibility of being weaponised Or are used to collect massive amounts of user data, including from the approximately 170 million Americans who use TikTok.

TikTok, ByteDance and several of the app’s users quickly filed a lawsuit to block the ban in May, arguing that the legislation would suppress the freedom of expression of millions of Americans who use the platform. After a lower court upheld the ban, the Supreme Court agreed to hear TikTok’s emergency request to either block or temporarily halt implementation of the law under an accelerated timeline just nine days before the ban goes into effect.

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During oral arguments, Biden administration lawyers repeated the argument that TikTok’s Chinese ownership poses a “serious” national security risk to American users.

U.S. Attorney Elizabeth Prelogar cited the risk that China could weaponize the app, including by manipulating its algorithm to prioritize certain content or by asking parent company ByteDance to hand over massive amounts of user data that TikTok has collected on American users.

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TikTok’s lawyers, meanwhile, sought to frame the case primarily as a limitation on First Amendment free speech protections, which the company said applies to TikTok’s incorporation in the United States.

Noel Francisco, TikTok’s lawyer, said the US government “has no legitimate interest in blocking foreign propaganda,” and reiterated TikTok’s position that the platform and its owners should enjoy the highest level of free speech protections under the US Constitution.

Francisco also argued that TikTok could not divest from its Chinese parent company, citing parts of its source code and intellectual property located in China.

First Amendment protection They must be considered under strict scrutiny, which requires the government to bear a greater burden of proof in justifying the constitutionality of the law.

More specifically, laws dealing with First Amendment protections must be drafted to serve a compelling governmental interest, and narrowly tailored to achieve that interest.

It is a difficult legal test to meet in court. But the US Court of Appeals for the District of Columbia Circuit used it last month when considering the divestment law, and still voted to uphold it — illustrating the way the Supreme Court could theoretically have considered the case under strict scrutiny and still chosen to uphold it. the law.

During oral arguments at the Supreme Court, several justices seemed skeptical of the company’s basic argument, which is that the law restricts free speech.

“Exactly what is the TikTok discourse here?” Justice Clarence Thomas That question was asked in the opening moments of oral arguments in an early sign of the court’s clear doubt that the law is in fact a violation of the First Amendment.

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The Supreme Court and its 6-3 conservative majority have historically deferred to Congress on matters of national security.

Congress passed the divestment law in question last year at the direction of senior Justice Department officials, who worked directly with House lawmakers to write the bill and help it address potential legal challenges.

But it also comes at a time when President-elect Trump He indicated clear support Application in recent months.

In December, Trump hosted TikTok CEO Shou Zi Chew at his Mar-a-Lago resort, and later told reporters that his incoming administration would “take a look at TikTok” and the divestiture issue.

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The president-elect’s lawyers also filed a memorandum with the Supreme Court last month, asking the justices to delay any decision in the case until after Trump’s inauguration on January 20.

The brief did not indicate how Trump might act, but noted his request for the court to temporarily halt the ban until Trump’s inauguration.