WASHINGTON — The Supreme Court on Friday appeared likely to uphold a law that would effectively ban social media platform TikTok in the United States.
The nine justices on the conservative-majority court heard oral arguments from lawyers for TikTok, some of its users and the Biden administration, with at least a preliminary decision likely in days, if not hours.
Although the justices did not appear convinced by TikTok’s free speech arguments, there remains some uncertainty over how the court will handle the case, especially with President-elect Donald Trump taking office a day after the Jan. 19 deadline for the law to take effect. The court has the authority to temporarily block the law even if it ultimately rules against TikTok.
Trump filed an unusual brief at the Supreme Court asking the justices to temporarily block the law so that when he takes office, he can “pursue a political resolution” to the dispute.
The law in question, enacted with broad bipartisan support, requires China-based TikTok owner ByteDance to divest itself of the company. If no sale takes place, the platform used by millions of Americans would “go dark,” according to the company’s lawyer, Noel Francisco.
TikTok and some of its users sued to block the measure, saying it violates their free speech rights under the Constitution’s First Amendment.
The court is weighing those arguments against the government’s defense of the law on national security grounds over concerns that the Chinese government could exert influence over the platform.
While justices expressed some concerns about the law raising free speech issues, especially as it relates to the platform’s content moderation policies, they also appeared willing to defer at least to some of the government’s national security justifications related to concerns about collection of data of American users.
Justice Brett Kavanaugh said the government’s arguments about data collection were “very strong,” but that the concerns about the Chinese government exerting control over content “raise much more challenging questions.”
Chief Justice John Roberts also seemed reluctant to second-guess Congress, citing its findings that ByteDance is subject to Chinese laws that require it to assist with intelligence gathering.
“So are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” he asked.
Among other questions posed by justices were whether TikTok’s free speech rights are even at issue given that the law targets its foreign owner, which may not be able to claim First Amendment protections.
“The only First Amendment rights lie in Tiktok, which does have First Amendment rights. And I guess my question is, how are those First Amendment rights really being implicated here?” Justice Elena Kagan asked.
Justice Sonia Sotomayor also questioned whether the forced divestiture implicates TikTok’s First Amendment rights, regardless of how feasible it is to divest or how long it takes, because TikTok can continue to operate with an algorithm.
“Your stronger argument, or at least the one that most interested me, was this argument of, ‘Look, if the government is doing something specifically for the purpose of changing the content that people see, that has to be subject to strict scrutiny,” Sotomayor said. “I don’t see that as affecting TikTok as opposed to affecting ByteDance.”
When asked to provide precedent of corporate structure regulation being treated as a direct regulation of express conduct, Francisco said the TikTok is largely unprecedented. He said the national security risk posed by TikTok does not justify the law.
“I’m not aware of any time in American history where the Congress has tried to shut down a major speech platform,” Francisco said. If TikTok loses the case, Francisco said, “it will go dark” on Jan. 19. He suggested a preliminary injunction could “buy everybody a little breathing space.”
Jeffrey Fisher, an attorney for TikTok content creator Brian Firebaugh, said that his client’s First Amendment speech rights were impeded by the law, because creators have a right to work with the publisher of their choice.
“Congress doesn’t care about what’s on TikTok,” Chief Justice John Roberts said. “They don’t care about the expression, that’s shown by the remedy. They’re not saying TikTok has to stop. They’re saying China has to stop controlling TikTok.”
Fisher said that TikTok’s unique algorithmic design allows his client and other “ordinary American citizens” to build large platforms and have their voices heard. Other social media platforms have been unsuccessful in replicating the environment TikTok offers, Fisher said, which would put TikTok creators at a disadvantage if the app became unavailable and they lost their largest audiences.
The case has a fraught and complicated political history.
While the ban was enacted with bipartisan support in Congress and signed into law by President Joe Biden, Trump has flip-flopped on the issue. During his first administration, he threatened to ban TikTok, but he later indicated support for it during the election campaign, citing his own prominence on the platform. He recently met with the company’s CEO.
The law includes a provision that allows for the president to grant a one-time extension of 90 days if he determines that there’s a path to divestiture and “significant progress” toward executing it. There are have been no public signs that such a sale is likely. On Thursday, a consortium in which billionaire Frank McCourt is involved said it was making an offer.
TikTok, as well as eight individual users and Based Politics Inc., a conservative group that uses TikTok, all filed separate challenges saying the law violates their free speech rights.
The U.S. Court of Appeals for the District of Columbia Circuit upheld the law, despite finding that it did implicate the First Amendment and needed to be reviewed very closely.
The three-judge panel concluded that the law served a compelling government interest and was sufficiently narrowly tailored to further that interest.
The appeals court found that the government’s national security justifications, including concerns that the Chinese government could access data about American users and potentially manipulate content on the app, were legitimate.
TikTok’s lawyers argued in court papers filed at the Supreme Court that while Congress clearly has an interest in protecting national security, the menu of options available “does not include suppressing the speech of Americans because other Americans may be persuaded.” The government did not even attempt to resolve its national security concerns by an alternative approach that would not violate free speech rights, they added.
TikTok’s supporters at the court include a cross-ideological array of public interest groups, including the left-leaning American Civil Liberties Union and the libertarian Cato Institute, that have joined the fight on free speech grounds.
The job of defending the law falls to Solicitor General Elizabeth Prelogar just a few days before she will leave her position.
In court papers, she argued among other things that the law does not even implicate the First Amendment, saying the potential ban “addresses the serious threats to national security posed by the Chinese government’s control of TikTok, a platform that harvests sensitive data about tens of millions of Americans and would be a potent tool for covert influence operations by a foreign adversary.”
The law does not place any restrictions on speech but instead prevents a “foreign adversary” from controlling it, she added.
Even if there are free speech concerns, they are minimal because the restrictions are not focused on suppressing specific speech based on what is being said or who is saying it, Prelogar said.
When speaking to the court on Friday, Prelogar said that “Americans are on this platform thinking that they are speaking to one another, and this recommendation engine that is apparently so valuable is organically directing their speech to each other. And what is covert is that the PRC, a foreign adversary nation, is instead exploiting a vulnerability system.”
Justice Elena Kagan responded that “everybody now knows that China is behind it” and compared the lack of disclosures around TikTok’s algorithm to other social media platforms, like X.
Prelogar pointed the justices to information about TikTok collecting user data and using it surveil the physical location of Forbes journalists and said ByteDance could be compelled to share that information with China’s government.
In 2018, Meta acknowledged that it had also given user data access to developers in China.
The federal government has the backing of Montana and 21 other states as well as former national security officials.
TikTok was launched in the U.S. in 2018 and has become increasingly popular, now claiming 170 million American users.
The algorithm provides users with streams of short-form video content that adjust based on their interests.