Topline
The fate of TikTok’s U.S. operations might be decided Friday after the Supreme Court said it may announce opinions in the morning, potentially delivering a ruling on TikTok days before the ban against it is scheduled to take effect, with justices recently signaling during oral arguments they may uphold the policy.
Content creators Callie Goodwin of Columbia, S.C., (L) and Sarah Baus of Charleston, S.C., (R) speak … [+]
Key Facts
The Supreme Court’s Friday agenda noted the court “may announce opinions on the homepage beginning at 10 a.m.” EST.
The Supreme Court heard oral arguments last week over whether the federal law—which requires TikTok to separate from parent company ByteDance or else be banned—is in violation of the First Amendment.
The law is now scheduled to take effect Sunday, unless the Supreme Court rules otherwise, as the court previously declined to pause the law from taking effect while it considered the case.
TikTok and content creators on the app argued the ban violates their First Amendment rights by cutting off all speech on the platform, while the federal government argued the ban is necessary for national security, given ByteDance’s Chinese ownership.
Justices on both sides of the aisle appeared skeptical of TikTok’s arguments, with Justices Elena Kagan and Amy Coney Barrett questioning how TikTok’s First Amendment rights are implicated when the law is specifically targeting ByteDance—a foreign-owned company—and its algorithm.
Justice Ketanji Brown Jackson suggested TikTok was “wrong” that the case violates its First Amendment rights, and said she thought the case was more about TikTok wanting to associate with ByteDance than its speech being silenced.
Chief Justice John Roberts said the federal law was “not a burden on” TikTok and its users’ “expression at all,” arguing Congress was fine with users’ speech on the app but just not a “foreign adversary” gathering information about the app’s users.
Justice Samuel Alito asked TikTok creators’ attorney about whether his clients would actually be harmed if TikTok went away or if they could just go to a different platform, questioning whether their attachment to TikTok was akin to “somebody’s attachment to an old article of clothing” that could be replaced or if ByteDance had truly created a “magical algorithm” that no other tech company could possibly replicate.
Justice Brett Kavanaugh brought up past examples of the U.S. blocking broadcasting companies from having ties to foreign governments and brought up the government’s concerns about TikTok collecting data on U.S. users, which he said “seems like a huge concern for the future of the country.”
What To Watch For
While the court is scheduled to release opinions Friday morning, there’s no guarantee that it will include the TikTok case. That being said, the court has signaled it would likely rule swiftly in the case, as it declined to pause the law from taking effect when they took up the case, instead scheduling oral arguments swiftly before the deadline. That suggested justices are prepared to rule imminently on the ban’s fate. It’s still possible they could delay the law from taking effect until after Jan. 19, however, if they need more time to deliberate, and justices asked Prelogar last week about whether the government agreed they could do so. She agreed they could if they need the extra time, though the government’s position is that the court should uphold the law before Jan. 19.
Crucial Quote
If the TikTok ban takes effect, “At least as I understand it, we go dark—essentially the platform shuts down,” TikTok’s lawyer Noel Francisco told the court last week about the impact of the federal law. “It’s essentially gonna stop operating, I think that’s the consequence of this law.”
Contra
While they largely appeared skeptical of TikTok’s legal case, justices also questioned the federal government’s arguments backing the law. Justice Neil Gorsuch suggested the government could just require TikTok to put up a warning saying its content may be manipulated by China—and when Solicitor General Elizabeth Prelogar said that wouldn’t go far enough because users could still be unknowingly manipulated, responded, “That’s your best argument, is that the average American won’t be able to figure out that his cat feed on TikTok could be manipulated even though there’s a sign saying, ‘This is manipulated’?” Gorsuch also questioned whether China’s involvement with TikTok wasn’t akin to other publishers owned by foreign companies—like the Oxford University Press or German-owned Politico—or how it’s different from users not knowing how other social media companies make decisions about their content. While they questioned TikTok’s arguments against the ban, Kagan also raised concerns to Prelogar about how the law was different from attempting to regulate the U.S.’ Communist Party during the “Red Scare” in the 1950s, and Jackson questioned Prelogar’s claims that the federal law isn’t concerned at all with content on the app. “The whole point of the divestiture” is to make TikTok’s content different than it would be if the Chinese government were manipulating it, Jackson argued. Gorsuch and Roberts also raised concerns about the federal government including sealed evidence justifying the ban in the case that even TikTok’s and creators’ lawyers weren’t able to view.
Is Trump In Favor Of The Tiktok Ban?
President-elect Donald Trump is not a formal party in TikTok’s legal dispute, since he hasn’t taken office yet, but the president-elect has filed a brief with the Supreme Court saying he opposes the ban and asks the court to pause the law from taking effect until after he takes office, rather than rule quickly on it before Jan. 19. “Such a stay would vitally grant President Trump the opportunity to pursue a political resolution that could obviate the Court’s need to decide these constitutionally significant questions,” his lawyers argued to the court. The court is not bound to respond to Trump’s request, since he’s not a formal party in the case, and did not give any indication during oral arguments whether they would do so.
Can Trump Stop The Tiktok Ban?
Trump has few options to save TikTok if the ban takes effect: As president, he can order a 90-day pause on the law if there’s evidence TikTok is in the process of separating from ByteDance, but so far the company is unwilling to do so, and if Trump pauses the law without that evidence, it could get overturned in court. Trump could also try and declare TikTok is in compliance with the law—but if it’s still owned by ByteDance, that could similarly get challenged in court—or try to negotiate an agreement with ByteDance for it to sell the app. While ByteDance has so far been unwilling to sell TikTok to a U.S. company, James Lewis, director of the Strategic Technologies Program at the Center for Strategic and International Studies, told NPR China could possibly be persuaded to approve of ByteDance selling TikTok in exchange for Trump backing off his threat of high tariffs on Chinese imports. Francisco suggested Trump could pause the ban once he takes office, saying that while he thought the app could go dark on Jan. 19, one day before Trump’s inauguration, the app could be “in a different world” after Jan. 20. Prelogar also acknowledged the ban could be halted after Trump takes office if something changed and ByteDance was willing to divest, noting the law allows for the ban to only be temporary if the situation changes. She also didn’t disagree when Kavanaugh suggested Trump could simply declare the law won’t be enforced. Legal experts have questioned whether any effort by Trump to bar his Justice Department from enforcing the law would actually be successful, however, as companies like Apple and Google are likely to comply with the law anyway in case Trump ever changed his mind.
What Happens If The Tiktok Ban Takes Effect?
If the Supreme Court upholds the ban and it takes effect on Jan. 19—or later, should they temporarily pause it—it’s still unclear what will happen and what the impact will be for TikTok users. The federal law prohibits companies like Apple and Google from hosting TikTok on their U.S. app stores, unless ByteDance divests, which means that users would no longer be able to download TikTok or update the app. That means the app would eventually be rendered obsolete and unusable as it gets out of date. The law also prohibits internet service providers from enabling TikTok’s distribution, like Oracle, which handles TikTok’s U.S. user data. The impacts of that provision are less clear: As Francisco said, TikTok has claimed that it would mean the company could shut down, saying in a filing it could no longer “provid[e] the services that enable the TikTok platform to function, effectively shutting down TikTok in the United States.” University of Minnesota law professor Alan Rozenshtein noted to CBS News TikTok could just move those servers out of the U.S., however, which would keep TikTok online in the U.S.—at least in the short term, before the app becomes outdated. It’s still unclear what will happen to other aspects of TikTok’s U.S. operations, like its Creator Fund or the TikTok shop, but the ban is expected to impact other ByteDance-owned apps like CapCut and Lemon8.
Will Bytedance Sell Tiktok?
ByteDance and TikTok have so far opposed any suggestion that they could separate, though it remains to be seen what will happen if the Supreme Court upholds the ban and it actually takes effect. Prelogar suggested during oral arguments the possibility that the Supreme Court upholding the law could be “just the jolt that Congress expected the company would need” to divest, predicting that while ByteDance and TikTok are now engaged in a game of “chicken” insisting ByteDance won’t sell TikTok as long as the ban’s legality is still in doubt, the companies could change their mind once the ban is actually a reality. It still remains to be seen if that will actually happen or who could ultimately buy TikTok, though billionaire Frank McCourt said he has made a proposal to buy TikTok’s U.S. assets.
Key Background
The federal law requiring ByteDance to divest from TikTok was enacted in April following longstanding concerns by lawmakers on both sides of the aisle about the app’s ties to China. TikTok has long denied any wrongdoing or links to the Chinese government, and the government’s specific evidence justifying the ban has not been made public and was filed in court under seal. Forbes has reported on numerous concerns involving the app, including TikTok spying on journalists, promoting Chinese propaganda that criticized U.S. politicians, mishandling user data and tracking “sensitive” words. TikTok and creators on the app filed lawsuits against the ban days after it was enacted, but a federal appeals court ruled against them in December, upholding the law. The panel of judges ruled the ban did not violate TikTok and its users’ First Amendment rights—because all content on the app will still be available if ByteDance just divests from TikTok—and upheld the government’s assessment that banning a ByteDance-owned TikTok is necessary. Judges argued the law is actually the least restrictive way of dealing with the national security concerns, given that it allows TikTok to continue operating in the U.S. if it separates from ByteDance. TikTok and creators went to the Supreme Court after the appeals court then refused to pause the law from taking effect while it appealed the case, and the Supreme Court quickly took it up and scheduled oral arguments for just weeks later.