Supreme Court judges are skeptical of TikTok’s free speech arguments ahead of a potential ban
Supreme Court justices on Friday asked a lawyer representing TikTok and its Chinese parent company ByteDance tough questions about a law that would force or ban sales of the popular short-form video app in the United States by Jan. 19. pits free speech rights against national security concerns.
TikTok and ByteDance, as well as some users who post content on the app, have protested the law, which was passed by Congress last year with strong bipartisan support and signed by Democratic President Joe Biden, whose administration has championed it.
During arguments in the case, nine judges examined the nature of TikTok’s access rights and the government’s national security concerns — 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’s ruling that upheld the law, rejecting their argument that it violated the US Constitution’s First Amendment protections against government curtailing free speech.
The Supreme Court hearing comes at a time of heightened trade tensions between the world’s two largest economies. Republican Donald Trump, who will begin his second term as president on January 20, is against the ban. although that was not always the case during his first four years as president.
Is TikTok really a national security threat, or is the US unfairly singling out a Chinese-owned company? The National’s Ian Hanomansingh asks digital security watchers Christian Leuprecht and Julia Angwin to break down the pros and cons of a potential ban.
Noel Francisco, a lawyer for TikTok and ByteDance, told the judges that the app is one of the most popular speech platforms for Americans and that it will essentially shut down on January 19.
Francisco told conservative Justice Brett Kavanaugh that on that date, “at least as I understand it, we (TikTok) are blacked out. Basically, unless President Trump exercises his authority to extend it, the platform is shut down.” But Trump does not take office until January 20, Francisco said.
“It could be January 20th, 21st or 22nd that we could be in a different world,” Francisco said, calling it one of the reasons the justices “put a temporary break in the law to buy everybody” some breathing space. “
Responding to Justice Amy Coney Barrett, Francisco said it could take “many years” for ByteDance to give up on TikTok.
Francisco, who was once a top attorney in the Trump administration, cited the president-elect’s stance on the issue.
He asked the justices to at least temporarily suspend the law “which will allow them to look carefully at this important issue and potentially discuss the case for the reasons the president-elect has explained.”
Conservative Justice Samuel Alito also raised the possibility of a so-called administrative stay, which would temporarily suspend the law while the court decides how to proceed with the justice.
On December 27, Trump urged the Supreme Court to stay the Supreme Court’s January 19 adjournment to allow his incoming administration “an opportunity to reach a political resolution to the issues at issue in the case.”
Not a “direct burden” on free speech: the chief justice
The Supreme Court weighed competing concerns about free speech rights and the national security impact of a social media platform with foreign owners collecting data from its domestic user base of 170 million Americans, roughly half the U.S. population.
The real target of the law, Francisco said, is “speech itself — the fear that Americans, even if fully informed, might be persuaded by China’s disinformation. That, however, is a decision that the First Amendment leaves to the people.”
Referring to ByteDance, liberal Justice Elena Kagan told Francisco that the law is “directed solely at this foreign corporation that has no First Amendment rights.”
Conservative Chief Justice John Roberts pressed Francisco on TikTok’s Chinese ownership and congressional implications.
“Should we ignore the fact that the real parent is doing intelligence work for the Chinese government?” Roberts asked. “It seems to me that you’re ignoring the main concern of Congress here — which was China’s manipulation of content and the acquisition and collection of content.”
Roberts described it as “not a direct burden” on free speech.
The government is raising concerns about spies
US Attorney General Elizabeth Prelogar argued for the Biden administration that the Chinese government’s control of TikTok poses a serious threat to US national security. TikTok’s large data set of US users and their non-user connections gives China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government “could weaponize TikTok at any time to harm the US.”
Prelogar said the First Amendment does not prohibit Congress from taking steps to protect Americans and their information.
“The damage to national security comes from the ability of a foreign adversary to covertly manipulate the platform to further its geopolitical goals, regardless of what form such covert operation may take,” he said.
The platform’s powerful algorithm provides individual users with short videos tailored to their tastes. TikTok said the ban would hit its user base, advertisers, content creators and employee talent. TikTok has 7,000 US employees.
Francisco told conservative Justice Barrett that TikTok’s algorithm represented editorial discretion.
The head of Canada’s CSIS intelligence agency said Canadians should stay away from TikTok because it poses a data security risk. He says it is very clear from the design of the program that Canadian information is accessible to the Chinese government.
But Justice Clarence Thomas challenged Francisco’s argument that TikTok’s US operations have free speech rights.
“You’re turning a restriction on ByteDance’s ownership of the algorithm and the company into a restriction on TikTok’s speech. So why can’t we just see this as a restriction on ByteDance?” Thomas asked.
The Justice Department said the law aims to prevent the app from being controlled by a foreign competitor, rather than protected speech, and that TikTok could continue to operate as is if freed from Chinese control.
Francisco highlighted the impact of allowing Congress to ban TikTok — “it means the government can actually come in and say, ‘I’m going to shut down TikTok because it’s too Republican or too Democrat, or it won’t spread.’ The speech I want, and it can’t lead to First Amendment scrutiny by anyone.”
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