ARGUMENT ANALYSIS

Supreme Court skeptical of ban on TikTok

The Supreme Court on Friday was divided over the constitutionality of a federal law that would require social-media giant TikTok to shut down in the United States unless its Chinese parent company can sell it by Jan. 19. During two hours of oral arguments, the justices raised questions about whether the law at the center of the case actually restricts TikTok’s freedom of speech, as well as about what will happen if there is no sale by the deadline.

Citing national security concerns, Congress enacted the law at the center of the case, the Protecting Americans from Foreign Controlled Applications Act, in 2024 as part of a package to provide aid to Ukraine and Israel. The law identifies China and three other countries – North Korea, Russia, and Iran – as “foreign adversaries” of the United States and bars the use of apps controlled by those countries. The law also defines applications controlled by foreign adversaries to include any app run by TikTok or ByteDance. 

TikTok and a group of its users went to federal court in Washington, D.C., to challenge the law, arguing that it violates the First Amendment. The U.S. Court of Appeals for the District of Columbia Circuit rejected that argument and declined to put the law on hold, reasoning that the law was the “culmination of extensive, bipartisan action by the Congress and by successive presidents.” Moreover, Senior Judge Douglas Ginsburg added, the law was “carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the People’s Republic of China.”

TikTok and its users then came to the Supreme Court last month, asking the justices to step in. TikTok told the justices that the government’s national security claim was speculative and that the law should not stand. The justices on Dec. 18 agreed to fast-track the briefing in the case and hear oral arguments on Jan. 10 – nine days before the law was scheduled to go into effect.

Lawyers for President-elect Donald Trump, who has changed his stance on such a ban since he was last in office and currently opposes shutting down TikTok, did not appear before the court on Friday. In a “friend of the court” brief filed in late December, Trump urged the justices to delay the ban’s effective date to give his administration an opportunity to “pursue a negotiated resolution” when it takes office on Jan. 20.  

Representing TikTok, Noel Francisco – who served as the U.S. solicitor general during the first Trump administration – emphasized that the dispute over the law “boils down to speech.” Congress was concerned, he told the justices, that ideas on TikTok’s platform could persuade Americans. But a pillar of the First Amendment, he said, is that the government cannot restrict speech to protect speech.

Jeffrey Fisher, who represents the group of TikTok users, added that the law directly restricts his clients’ First Amendment right to participate in a “modern public square.” Restricting speech because it might sow doubt about U.S. leaders, he stressed, “is what our enemies do.”

But U.S. Solicitor General Elizabeth Prelogar countered that the Chinese government’s control of TikTok “poses a grave threat to national security.” She pointed to both the possibility that the Chinese government could secretly manipulate content on TikTok and to the risk that TikTok’s “immense data set would give the People’s Republic of China a powerful tool” for harassment and espionage.

Millions of Americans, Prelogar acknowledged, enjoy expressing themselves on TikTok. But they can still continue to do so even if ByteDance sells the U.S. company.

Some justices, however, were unconvinced that the law necessarily raises a First Amendment issue. Justice Clarence Thomas asked Francisco how a restriction on ByteDance’s ownership of TikTok created any limitations on TikTok’s speech.

Justice Elena Kagan echoed Thomas’s skepticism. If the law only targets ByteDance, which does not have any First Amendment rights because it is a foreign corporation, she asked Francisco, how does that implicate TikTok’s First Amendment rights? TikTok can still use whatever algorithm it wants, Kagan observed.

Justice Amy Coney Barrett also appeared to agree at times. The law, she simply requires ByteDance to divest TikTok. A shut-down by TikTok, she suggested, would be the consequence of ByteDance’s choice not to do so.

Other justices appeared persuaded by the government’s invocation of national security concerns. Chief Justice John Roberts observed that, although Francisco contended that TikTok is a U.S. company, Congress had concluded that the “ultimate company that controls” TikTok is subject to Chinese laws, including an obligation to assist the Chinese government with intelligence work. “Are we,” Roberts queried, “supposed to ignore that?”

Justice Brett Kavanaugh noted the government’s contention that China is using TikTok to access information about millions of U.S. citizens, and in particular young people, and could in the future use that information to try to recruit spies or manipulate future U.S. officials. That “seems like a huge concern for the future of” the United States, Kavanaugh observed.

Justice Elena Kagan, however, was more dubious of the government’s argument that the law is necessary to prevent China from covertly manipulating content on TikTok. She pressed Prelogar on what it meant for the manipulation to be “covert.” All social-media platforms – and not just TikTok – are “a little bit of a black box” in terms of the difficulty of understanding why particular content appears at a particular time. And to the extent that Prelogar asserted that it was not apparent that the Chinese government could be influencing content on TikTok behind the scenes, Kagan retorted, “everybody now knows that China is behind it.”

Both TikTok and its users made a related point. They argued that even if Congress had a compelling interest in preventing China from covertly manipulating content, it could have done so using less draconian methods than shutting the company down completely – for example, by requiring TikTok to disclose the possibility of such manipulation to its users.

Fisher pointed the justices to what he characterized as a “longstanding tradition” of similar disclosures: the Foreign Agents Registration Act, which requires anyone who seeks to influence U.S. policy on behalf of a foreign government to register with the Department of Justice.

Justice Neil Gorsuch seemed to agree, suggesting to Prelogar that simply shutting down TikTok to avoid concerns about content manipulation was “paternalistic.” “Isn’t the best remedy for speech,” he asked, “counterspeech?”

Justice Ketanji Brown Jackson wondered aloud whether requiring TikTok to disclose the potential for content manipulation might itself create its own First Amendment problems.

Francisco acknowledged that disclosures would not be “perfect,” but that they would be better than shutting the platform down altogether.

Fisher similarly pushed back against the government’s allegations that the law is necessary to protect against China’s collection of data from its U.S. users. The law is primarily aimed at combatting the covert manipulation of content, he contended. But in any event, Fisher continued, if Congress were in fact worried about the “very dramatic risk” from data collection, it could have banned the data sharing or extended the law to other websites – such as Shein and Temu – that also collect data from their users. And, Fisher noted, even if TikTok is shut down, ByteDance will still be able to retain the user data that it has already collected.

Prelogar resisted any suggestion that a ban on data sharing would be a less restrictive way to address Congress’s concerns about data privacy. TikTok and ByteDance never indicated that they could create a firewall between U.S. users’ data and the Chinese government, she said, and she dismissed ByteDance as “not a trusted partner.”

With the law’s Jan. 19 effective date looming, the justices pressed lawyers about what will happen if (as expected) ByteDance does not sell TikTok.

Francisco told the justices that TikTok would “go dark” in the United States. Echoing Trump’s brief in the case, he argued that it would make “perfect sense to issue a preliminary injunction and buy everyone a little breathing space.”

Prelogar countered that ByteDance was playing a “game of chicken,” hoping that it could stave off the effective date of the law either in the courts or in the executive branch. But she emphasized that the restrictions on TikTok could be lifted as soon as ByteDance sells it – which might be “just the jolt that” ByteDance needs to move forward. TikTok and ByteDance have “been on notice since 2020” that the parent company might need to sell TikTok, she stressed.

Prelogar added that there was no basis for the Supreme Court to enter a preliminary injunction blocking the law unless it believes that TikTok is ultimately likely to succeed on the merits of its challenge to the law.

The justices are likely to act quickly on this case, taking into account the law’s Jan. 19 deadline.

This article was originally published at Howe on the Court.