The Supreme Court on Friday heard oral arguments in the case involving the future of TikTok in the United States, and a law that could effectively ban the popular app as soon as next week.
The Protecting Americans from Foreign Adversary Controlled Applications Act targets TikTok and will impose harsh civil penalties on app “entities” that carry the service after a Jan.19 deadline. Among several issues the justices considered was whether the law violates the Constitution’s free speech protections.
During the over two-hour long argument, justices repeatedly questioned TikTok’s head lawyer 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 its millions of individual users in the United States.
Still, questions remain about president-elect Donald Trump‘s willingness to enforce the law once he assumes office, just a day after it goes into effect. If Trump decides not to enforce violations, third-party service providers like Apple and Google will face a dilemma: Whether to follow the letter of the law or put their trust in 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 go into effect seems correct.”
“What remains unfortunate is the credulity with which many of the justices treated this law, which clearly implicates free speech rights on underspecified national security grounds,” Hans said.
TikTok’s argument
Noel Francisco, the U.S. solicitor general during president-elect Donald Trump’s first term, opened the hearing as TikTok’s legal representative. He echoed Trump’s desire for the court to halt the effective ban, in order to give Trump time to find a political resolution to the national security concerns over TikTok.
The justices peppered Francisco with questions about TikTok’s ties to China-based ByteDance, which owns the social media service, and interrogated TikTok’s first-amendment argument against the law.
Much of the court’s line of inquiry focused on the ownership-structure of TikTok. When Justice Samuel Alito asked Francisco whether he would make the same argument if TikTok was directly owned by the Chinese government, the TikTok lawyer said he would not.
But Francisco also insisted that Beijing does not force TikTok to make content decisions.
“We absolutely resist any kind of content manipulation by China at all,” said Francisco. His careful use of the word “resist,” rather than, for example, “reject” was noted by court watchers.
O’Melveny & Myers special counsel Jeffrey Fisher argued on behalf of the TikTok content creators who are challenging the law.
In the interest of national security, “Congress can prohibit Americans … from associating with terrorist organizations,” said Fisher. But the “government just doesn’t get to come in and say ‘national security’ and the case is over.”
“You have to dig underneath what is the national security claim,” Fisher said.
The government’s case
Much of the argument in support of the TikTok divesture law so far centers around the claim that TikTok indeed poses a national security threat. This was at the heart of U.S. solicitor general Elizabeth Prelogar’s argument.
Americans using TikTok may believe “they are speaking to one another,” Prelogar said. But in reality, “the PRC, a foreign adversary nation, is instead exploiting a vulnerability in the system.”
The justices pressed Prelogar on how TikTok differs from other foreign-owned outlets, like Politico and the Oxford University Press.
“China is a foreign adversary nation that looks for every opportunity it has to weaken the United States,” she said. “If it has control over [TikTok], it’s hard to predict exactly how it’s going to use that as a tool to harm our interests.”
“But we know it’s going to try,” Prelogar said.
“What we’re trying to prevent is not the specific subject matter, the specific viewpoints, but the technical capability of a foreign adversary nation to use a communications channel,” Prelogar said.
Regarding whether the incoming Trump administration could extend the deadline before the law is enacted, Prelogar said that the U.S. government has not yet taken a position on that.
“We have not run it to ground, in part because it’s simply not presented here,” Prelogar said.
Trump will be inaugurated on Jan. 20, and the deadline for divestiture is Jan. 19.
Regarding whether president-elect Trump can choose to not enforce the law, Prelogar said that “raises a tricky question.”
It’s unclear when the court will hand down a decision, and if China’s ByteDance continues to refuse to divest TikTok to an American company, it faces a complete ban nationwide.
What are the potential impacts on users?
The roughly 115 million U.S. TikTok monthly active users could face a range of scenarios depending on when the Supreme Court hands down a decision.
If no word comes before the law takes effect on Jan. 19 and the ban goes through, it’s possible that users would still be able to post or engage with the app if they already have it downloaded.
TikTok vs. the US Government: A Battle for Free Speech
TikTok, the popular short-form video app, is facing legal challenges in the United States that could potentially lead to its shutdown. The app, which has a massive user base in the US, is at the center of a debate between free speech advocates and concerns over national security.
A Threat to Content Creators
Legal experts have warned that users may be unable to update or redownload the app after a certain date, putting thousands of content creators at risk. These creators rely on TikTok for income through ad revenue, partnerships, and merchandise sales. If the app is shut down, they may need to transition their businesses to other platforms like YouTube or Instagram.
George Wang, a staff attorney at the Knight First Amendment Institute, expressed concern over the potential shutdown, stating that it could have far-reaching consequences for both creators and viewers. He emphasized the dangerous precedent it could set for online speech regulation.
What Comes Next?
The Supreme Court is expected to issue a ruling on the case soon, with some experts predicting a quick decision due to the expedited hearing. The outcome of the case will have significant implications, given TikTok’s large user base in the US.
Erwin Chemerinsky, dean of Berkeley Law, highlighted the unprecedented nature of the government’s attempt to prohibit a platform for speech. He noted the tension between free speech issues and national security concerns in the case.
Privacy and data collection concerns are valid, according to Hans of Cornell University. However, he pointed out that the law specifically targets TikTok in a way that raises concerns about potential future government actions against other speech platforms.
The Future of TikTok
As the legal battle continues, the future of TikTok remains uncertain. Content creators, users, and stakeholders are closely watching the developments and awaiting the Supreme Court’s ruling.
Despite the challenges facing the app, TikTok’s popularity and cultural impact cannot be denied. It has become a significant platform for creativity, entertainment, and social connection for millions of users worldwide.
Whether TikTok will be able to overcome the legal hurdles and continue to thrive in the US remains to be seen. The outcome of the case will not only impact the app itself but also raise important questions about free speech, online regulation, and national security.
Stay tuned for updates on the TikTok vs. US government saga as it unfolds.
