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The Supreme Court on Friday heard oral arguments in the case involving participation the future of TikTok in the United States, and the law that can actually ban a popular app as soon as next week.
Act to protect Americans from programs controlled by a foreign adversary goals TikTok will also impose stiff civil penalties on “entities” that provide the service after the January 19 deadline. Among several issues the justices considered was whether the law violated the Constitution’s protection of free speech.
During the argument, which lasted more than two hours, the judges repeatedly questioned TikTok’s general counsel about the social media platform’s ties to the People’s Republic of China. And they seemed generally unconvinced by TikTok’s main argument that the law violates the free speech rights of millions of individual users in the United States.
Still, questions remain about the president-elect Donald Trumpwillingness to enforce the law as soon as he takes office, just one day after it takes effect. If Trump decides not to apply the breach, third-party service providers like it an apple and Google face the dilemma of whether to follow the letter of the law or trust the new administration’s assurances that they 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 take effect seems correct.”
“What remains unfortunate is the credulity with which many judges have treated this law, which clearly preempts free speech rights for ill-defined national security reasons,” Hans said.
TikTok’s argument
Noel Francisco, the US solicitor general during President-elect Donald Trump’s first term, opened the hearing as TikTok’s legal representative. He echoed Trump’s wish court to terminate the effective banto give Trump time to find a political resolution due to national security concerns over TikTok.
The judges peppered Francisco with questions about TikTok’s ties to ByteDance, the Chinese company that owns the social media service, and questioned TikTok’s First Amendment argument against the law.
Much of the legal investigation focused on TikTok’s ownership structure. When Judge Samuel Alito asked Francis if he would make the same argument if TikTok were directly owned by the Chinese government, TikTok’s lawyer said he would not.
But Francisco also insisted that Beijing is not forcing TikTok to make content decisions.
“We categorically oppose any manipulation of content by China,” Francisco said. His careful use of the word “oppose” rather than, for example, “reject,” was noted by judicial observers.
O’Melveny & Myers special counsel Jeffrey Fisher spoke on behalf of TikTok content creators challenging the law.
In the interest of national security, “Congress can prohibit Americans … from associating with terrorist organizations,” Fisher said. But “the government just can’t come in and say ‘national security’ and it’s over.”
“You have to dig deep into what is a national security requirement,” Fisher said.
The government’s case
Much of the argument in support of the law to take down TikTok so far has centered around the claim that TikTok does pose a threat to national security. This was at the heart of the argument of US Solicitor General Elizabeth Prelogar.
Americans who use TikTok may believe that “they’re talking to each other,” Prelogar said. But in reality, “the PRC, a foreign adversary nation, is instead exploiting a vulnerability in the system.”
The judges required Prelagar to find out how TikTok differs from other foreign-owned outlets such as Politico and Oxford University Press.
“China is a foreign adversary looking for any opportunity to weaken the United States,” she said. “If he controls (TikTok), it’s hard to predict exactly how he will use it as a tool to harm our interests.”
“But we know it will be tried,” Prelogar said.
“What we’re trying to prevent is not a specific subject, specific viewpoints, but the technical ability of a foreign adversary country to use a communications channel,” Prelogar said.
As for whether the new Trump administration could extend the deadline for the legislation, Prelogar said the US government has not yet taken a position on the matter.
“We didn’t get it off the ground, partly because it’s just not represented here,” Prelogar said.
Trump’s inauguration will take place on January 20, and the deadline for leaving is January 19.
As for whether President-elect Trump could waive the law, Prelogar said it “raises a difficult question.”
It is not yet clear when the court will rule, and if China’s ByteDance continues to refuse to give TikTok to the American company, it faces a complete ban across the country.
What is the potential impact on users?
TikTok’s roughly 115 million monthly active users in the US could face different situations depending on when the Supreme Court rules.
If nothing is done before the law goes into effect on January 19 and the ban goes into effect, it’s possible that users will still be able to post or interact with the app once they’ve downloaded it. However, those users likely won’t be able to update or re-download the app after that date, several legal experts said.
The thousands of short-form video creators who profit from TikTok through ad revenue, paid partnerships, merchandise and more will likely need to move their business to other platforms like YouTube or 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, a fellow at the Knight First Amendment Institute, which helped to write the institute’s proceedings on the case.
“This sets a really dangerous precedent for how we regulate speech online,” Wang said.
What’s next?
It is not yet clear when the Supreme Court will issue its ruling, but the fast-tracked case has some predicting that the court could issue a quick decision.
The case will have “huge implications” because TikTok’s US user base is so large, said Erwin Chemerinsky, dean of Berkeley Law School.
“It’s unprecedented for a government to ban a platform for speaking, especially one that is used by so many people,” Chemerinsky said. “At the end of the day, it’s a tension between free speech issues on the one hand and national security requirements on the other.”
“There are good reasons to be concerned about privacy and data collection,” said Cornell’s Hance.
“But this law specifically targets one platform in such a way that we have to worry whether future government actions could target other speech platforms.”
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