“Whether you call (the law) a forfeiture or a ban, one thing is clear: It's a burden on TikTok's speech, so the First Amendment applies,” TikTok's lawyers argued before the US Supreme Court on Friday.
Today's Supreme Court hearings mark the beginning of the end TikTok's long legal battle against the US government. The hearing began at 10 a.m. and lasted just over two hours. During that time, lawyers for TikTok and US Solicitor General Elizabeth Preloger presented their preliminary arguments and answered questions from the judges.
Similar to previous court proceedings, the US government argued that the popular video app could be a threat to national security and used by the Chinese government to spy on Americans. TikTok has been steadfast in its denial of those allegations, saying the 2024 bill — passed by wide margins in both houses of Congress and signed into law by President Biden — violates the First Amendment rights of TikTok's 170 million active US users. The hearings come just nine days before the upcoming January 19 waiver or ban deadline.
Watch this: US vs. TikTok: What happens next
TikTok's lawyer, Noel Francisco, opened the hearing. The judges asked a lot of questions to understand the relationship between TikTok US and its China-based parent company — specifically, what is the risk of “disguised content manipulation” and what exactly does that mean. For purposes of the hearing, the phrase referred to the potential for politically motivated actors to tweak TikTok's algorithms to change the videos users watch.
One point of contention at the hearing was the secret evidence provided by the US government, something that was left unresolved in the lower court proceedings. While the judges were questioning Francisco, one question from Justice confirmed that in that evidence, the US government “admits that there is no evidence that TikTok has engaged in the manipulation of hidden content in this country,” but the two sides disagree on whether ByteDance “responded to PRC seeks to censor content outside of China.”
Prelogar concluded the hearing, saying in her opening statement, “TikTok's massive data set will give the PRC a powerful tool for harassment, recruitment and espionage.” She expressed concern that not only users' data is at risk, but also other people in their contacts, and she expressed concern that the data of teenagers and young children in particular is at risk.
One of the more notable moments of the hearing was when Preloger argued that ByteDance would use the social platform to sow discord among Americans and distract them from Chinese manipulation, to which Chief Justice Roberts responded: “ByteDance may, through TikTok, be trying to get Americans arguing with each other, I say they win.”
What's next for TikTok?
The next step is for the Court to consider and then make a decision on the case. We don't know exactly when he will make his decision.
If the Supreme Court decides that the law violates the First Amendment, the Court can strike it down. If the Supreme Court finds that the law does not violate the First Amendment and upholds it, TikTok will have just days to find a US buyer for the app to meet the January 19 deadline. ByteDance said it was prepared to shut down the app in the US if the court ruled against them, with Francisco saying TikTok would “go dark” on January 19.
The January 19 deadline is also the day before Trump's inauguration. President-elect Trump recently signaled that he no longer opposes a ban on TikTok, a sharp reversal from his stance during his first term. Last week, Trump's lawyers filed an amicus brief in the case. They did not take sides, instead asking the court to delay the ban to give Trump time to come up with a “policy resolution,” though the brief did not provide specific details on what that would look like. In any case, Trump won't be able to do anything until he's inaugurated as president on the 20th, so there may be a hiatus.