On Friday, the Supreme Court heard oral arguments in the case regarding the future of TikTok in the United States and the law that could do so Effectively block a popular application next week.
Protecting Americans from Foreign Adversary-Controlled Apps Act goals TikTok and will impose severe civil penalties on app “entities” that provide the service after the January 19 deadline. Among several issues the justices considered was whether the law violated constitutional protections for free speech.
During more than two hours of argument, the justices repeatedly questioned TikTok's lead lawyer about the social media platform's ties to the People's Republic of China. And they seemed generally unconvinced about TikTok's central argument that the law violates the free speech rights of millions of individual users in the United States.
But questions remain about the president-elect Donald Trumpreadiness to enforce the law upon taking office, just one day after it takes effect. If Trump chooses not to enforce violations, such as third-party service providers Apple AND Google will face a dilemma: whether to follow the letter of the law or trust the new administration's assurances that it can effectively ignore it.
Cornell University law professor Gautam Hans said in a statement that “the consensus that the Court will allow the ban to go into effect appears to be correct.”
“What remains unfortunate is the credulity with which many judges have treated this law, which clearly implies a right to free speech for unspecified national security reasons,” Hans said.
The TikTok argument
Noel Francisco, the U.S. attorney general during President-elect Donald Trump's first term, opened the hearing as TikTok's legal representative. He repeated Trump's wishes regarding court to suspend the current banto give Trump time to find political resolution due to national security concerns regarding TikTok.
The justices peppered Francisco with questions about TikTok's ties to the Chinese company ByteDance, which owns the social media site, and heard TikTok's First Amendment argument against the law.
Much of the court's investigation focused on TikTok's ownership structure. When Justice Samuel Alito asked Francisco whether he would make the same argument if TikTok was directly owned by the Chinese government, TikTok's lawyer replied that he would not.
But Francisco also insisted that Beijing should not force TikTok to make content decisions.
“We absolutely oppose any form of content manipulation by China,” Francisco said. Court observers noted his careful use of the word “resist” rather than “reject,” for example.
O'Melveny & Myers special counsel Jeffrey Fisher spoke on behalf of TikTok content creators who are challenging the law.
In the interest of national security, “Congress can prohibit Americans … from having contact with terrorist organizations,” Fisher said. But “the government can't just come in and say 'national security' and that's the end of it.”
“You have to dig down to what's behind the national security claim,” Fisher said.
Government matter
So far, most of the arguments in favor of the TikTok divestment bill center around the claim that TikTok actually poses a national security threat. This was the basis of the argument of US Attorney General Elizabeth Prelogar.
Americans who use TikTok may believe they are “talking to themselves,” Prelogar said. But in reality, “the PRC, a foreign enemy country, is instead exploiting a loophole in the system.”
The judges pressed Prelogar to explain how TikTok differs from other foreign-owned sites such as Politico and Oxford University Press.
“China is a foreign, hostile country that is looking for every opportunity to weaken the United States,” she said. “If he has control over (TikTok), it is difficult to predict exactly how he will use it as a tool to harm our interests.”
“But we know he will try,” Prelogar said.
“What we are trying to prevent is not a specific topic or specific viewpoints, but the technical ability of an adversary foreign country to use a communication channel,” Prelogar said.
Regarding whether the future Trump administration could extend the law's entry into force, Prelogar said the U.S. government has not yet taken a position on the matter.
“We haven't discussed this in detail, in part because it just hasn't been presented here,” Prelogar said.
Trump will be inaugurated on January 20, and the deadline to divest the company is January 19.
As for whether President-elect Trump might decide not to enforce the law, Prelogar said that “raises a difficult question.”
It is unclear when the court will issue a decision, and if China's ByteDance continues to refuse to sell TikTok to a US company, it could face a total ban across the country.
What is the potential impact on users?
TikTok's roughly 115 million active U.S. users could face a variety of scenarios each month, depending on when the Supreme Court issues its decision.
If we don't receive any information before the law comes into force on January 19 and the ban is implemented, it's possible that users will still be able to post or use the app if they have already downloaded it. However, many legal experts have said that these users will likely not be able to update or redownload the app after this date.
The thousands of short video creators who generate revenue from TikTok through ad revenue, paid partnerships, merchandise and more will likely need to move their businesses to other platforms like YouTube and Instagram.
“Shutting down TikTok, even for a day, would be a big deal not only for the people who create content on TikTok, but for everyone who shares or views the content,” said George Wang, an attorney at the Knight First Amendment Institute, who helped write the institute's amicus brief on this matter.
“This sets a really dangerous precedent for regulating speech on the Internet,” Wang said.
What's next?
It is unclear when the Supreme Court will issue a ruling, but the expedited hearing of the case predicts that the court will be able to issue a ruling quickly.
The case will have “huge implications” because TikTok's U.S. user base is so large, said Erwin Chemerinsky, dean of Berkeley Law.
“The government banning speech platforms, especially those used by so many people, is unprecedented,” Chemerinsky said. “Ultimately, it is a tension between free speech issues on the one hand and national security claims on the other.”
“There are legitimate concerns about privacy and data collection,” said Cornell's Hans.
“But this law specifically targets one platform in a way that should make us question whether future government actions might target other speech platforms.”
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