Supreme Court justices on Friday asked tough questions of a lawyer representing TikTok and its Chinese parent company ByteDance over a law that would force the widely used short-video app to be sold or banned by Jan. 19 in the United States in a case that pits the right to free speech against concerns related to national security.
TikTok and ByteDance, as well as some users who post content on the app, are challenging the bill, which passed Congress with strong bipartisan support last year and was signed by outgoing Democratic President Joe Biden, whose administration defends it.
During arguments in the case, the nine justices examined the nature of TikTok's speech rights and the government's national security concerns – whether the app would allow the Chinese government to spy on Americans and conduct covert influence operations.
TikTok, ByteDance and the app's users appealed a lower court ruling that upheld the law and rejected their argument that it violated the U.S. Constitution's First Amendment protection against government suppression of free speech.
The Supreme Court's consideration of the case comes at a time of growing trade tensions between the world's two largest economies. Republican Donald Trump, who will begin his second term as president on January 20, opposes the ban, although this was not always the case during the first four years of his presidency.
Is TikTok really a national security threat, or is the United States unfairly targeting a Chinese company? The National's Ian Hanomansing asks digital security watchers Christian Leuprecht and Julia Angwin to weigh the pros and cons of a potential ban.
Noel Francisco, a lawyer for TikTok and ByteDance, told the justices that the app is one of the most popular speech platforms among Americans and that it will essentially shut down on Jan. 19.
Francisco told conservative Justice Brett Kavanaugh that on that day, “at least as I understand it, we (TikTok) will disappear. Essentially, the platform will be shut down unless divestment occurs, unless President Trump exercises his authority to extend it.” But Trump won't take office until Jan. 20, Francisco said.
“It is possible that on January 20, 21 or 22 we will be in a different world,” Francisco said, which he called one of the reasons why judges should temporarily suspend the application of the law to “buy everyone a little bit of breathing room.”
In a response before Judge Amy Coney Barrett, Francisco said ByteDance's divestment of TikTok could take “many years.”
Francisco, once general counsel in the Trump administration, cited the president-elect's position on the matter.
He asked the justices to at least temporarily suspend the application of the law “to allow for careful consideration of this important issue and, for reasons explained by the president-elect, potentially bringing the matter to a discussion.”
Conservative Justice Samuel Alito also raised the issue of the possibility of the court issuing the so-called an administrative suspension that would temporarily halt work on implementing the law until judges decide how to proceed.
On December 27, Trump called on the Supreme Court to postpone the company's January 19 divestment deadline to give his new administration “the opportunity to politically resolve the issues at issue in this case.”
This is not a “direct burden” on free speech: Chief Justice
The Supreme Court weighed conflicting concerns – about free speech rights and the national security implications of a foreign-owned social media platform that collects data from a domestic user base of 170 million Americans, about half the U.S. population.
Francisco said the real target of the bill “is the speech itself – the fear that Americans, even if they are fully informed, could be swayed by Chinese disinformation. “But that is a decision the First Amendment leaves to the people.”
Referring to ByteDance, liberal Justice Elena Kagan told Francisco that the bill “is directed solely against this foreign corporation that has no First Amendment rights.”
Conservative Chief Justice John Roberts pressed Francisco on the Chinese ownership of TikTok and Congress' findings.
“Should we ignore the fact that the ultimate parent actually does intelligence work for the Chinese government?” Roberts asked. “It seems to me that you are ignoring the main concern in Congress, which is Chinese content manipulation and content sourcing and harvesting.”
Roberts characterized it as “not being a direct burden” on free speech.
The government expresses concerns about espionage activities
U.S. Attorney General Elizabeth Prelogar, speaking in support of the Biden administration, said the Chinese government's control over TikTok poses a serious threat to U.S. national security. Prelogar said TikTok's vast trove of data on U.S. users and their non-user contacts gives China a powerful tool for harassment, recruitment and espionage, and the Chinese government “could weaponize TikTok at any time to harm the United States.”
Prelogar said the First Amendment does not prohibit Congress from taking steps to protect Americans and their data.
“The harm to national security stems from the very fact that a foreign adversary can covertly manipulate the platform to achieve its geopolitical goals, regardless of the form that type of covert operation may take,” she said.
The platform's powerful algorithm provides individual users with short videos tailored to their preferences. TikTok said the ban would affect its user base, advertisers, content creators and employee talent. TikTok has 7,000 employees in the US.
Francisco told conservative Justice Barrett that the TikTok algorithm represents editorial freedom.
The head of Canada's CSIS intelligence agency says Canadians should stay away from TikTok because it poses a data security risk. He says it's clear from the app's design that Canadian data is available to the Chinese government.
However, Justice Clarence Thomas challenged Francisco's argument that TikTok's U.S. operations ensured the right to free speech.
“You are transforming ByteDance's restriction of algorithm and company ownership into a restriction of TikTok's speech. So why can't we just look at it as a limitation on ByteDance?” – asked Tomasz.
The Justice Department has said the law covers control of the app by a foreign adversary, not protected speech, and that TikTok could continue to operate as is if it is freed from China's control.
Francisco emphasized the impact of allowing Congress to ban TikTok, “which means the government could actually come in and say, 'I'm going to shut down TikTok because it's too pro-Republican or too pro-Democratic or it won't spread the information,' the speech I want, and that wouldn't get through.” anyone considered under the First Amendment. This can't be happening.”