Supreme Court considers whether to allow TikTok ban to take effect

WASHINGTON — The fate of a law that would likely ban social media platform TikTok in the United States goes before the Supreme Court on Friday as the justices consider whether to block it.

The nine justices on the conservative-majority court are hearing oral arguments from lawyers for TikTok, some of its users and the Biden administration, with at least a preliminary decision likely in days, if not hours.

The law in question, enacted with broad bipartisan support, requires China-based TikTok owner ByteDance to divest itself of the company by Jan. 19, the day before President-elect Donald Trump takes office. If no sale takes place, the platform used by millions of Americans would be banned.

TikTok and some of its users sued to block the measure, saying it violates their free speech rights under the Constitution’s First Amendment.

The court is weighing those arguments against the government’s defense of the law on national security grounds over concerns that the Chinese government could exert influence over the platform.

Adding further complexity, the court could quickly issue an order saying whether it will provisionally block the law before it issues a final ruling on the free speech question.

During the oral arguments, Noel Francisco, an attorney for TikTok and its parent company, ByteDance, argued that forcing a divestiture of TikTok was comparable to shutting down The Washington Post if the Chinese government forced Post owner and Amazon founder Jeff Bezos’ companies in China to promote Chinese policy. He also denied that China has direct influence over the source code of TikTok as it operates in the U.S and said that a divestiture would prevent TikTok from being able to operate.

“There’s a global team of engineers, some in China, some in Europe, and some in the United States that update and maintain the source code,” Francisco said. “A qualified divestiture would prohibit any kind of coordination with that global team of engineers.”

Francisco also said that the law was a content-based speech restriction, with the content being the TikTok algorithm. Justice Sonia Sotomayor questioned whether the forced divestiture implicates TikTok’s First Amendment rights, regardless of how feasible it is to divest or how long it takes, because TikTok can continue to operate with an algorithm.

“Your stronger argument, or at least the one that most interested me, was this argument of, ‘Look, if the government is doing something specifically for the purpose of changing the content that people see, that has to be subject to strict scrutiny,” Sotomayor said. “I don’t see that as affecting TikTok as opposed to affecting ByteDance.”

When asked to provide precedent of corporate structure regulation being treated as a direct regulation of express conduct, Francisco said the TikTok is largely unprecedented. He said the national security risk posed by TikTok does not justify the law.

“I’m not aware of any time in American history where the Congress has tried to shut down a major speech platform,” Francisco said. If TikTok loses the case, Francisco said, “it will go dark” on Jan. 19. He suggested a preliminary injunction could “buy everybody a little breathing space.”

Jeffrey Fisher, an attorney for TikTok content creator Brian Firebaugh, said that his client’s First Amendment speech rights were impeded by the law, because creators have a right to work with the publisher of their choice.

“Congress doesn’t care about what’s on TikTok,” Chief Justice John Roberts said. “They don’t care about the expression, that’s shown by the remedy. They’re not saying TikTok has to stop. They’re saying China has to stop controlling TikTok.”

Fisher said that TikTok’s unique algorithmic design allows his client and other “ordinary American citizens” to build large platforms and have their voices heard. Other social media platforms have been unsuccessful in replicating the environment TikTok offers, Fisher said, which would put TikTok creators at a disadvantage if the app became unavailable and they lost their largest audiences.

The case has a fraught and complicated political history.

While the ban was enacted with bipartisan support in Congress and signed into law by President Joe Biden, Trump has flip-flopped on the issue. During his first administration, he threatened to ban TikTok, but he later indicated support for it during the election campaign, citing his own prominence on the platform. He recently met with the company’s CEO.

Trump filed an unusual brief at the Supreme Court asking the justices to temporarily block the law so that when he takes office, he can “pursue a political resolution” to the dispute.

The law includes a provision that allows for the president to grant a one-time extension of 90 days if he determines that there’s a path to divestiture and “significant progress” toward executing it. There are have been no public signs that such a sale is likely. On Thursday, a consortium in which billionaire Frank McCourt is involved said it was making an offer.

TikTok, as well as eight individual users and Based Politics Inc., a conservative group that uses TikTok, all filed separate challenges saying the law violates their free speech rights.

The U.S. Court of Appeals for the District of Columbia Circuit upheld the law, despite finding that it did implicate the First Amendment and needed to be reviewed very closely.

The three-judge panel concluded that the law served a compelling government interest and was sufficiently narrowly tailored to further that interest.

The appeals court found that the government’s national security justifications, including concerns that the Chinese government could access data about American users and potentially manipulate content on the app, were legitimate.

TikTok’s lawyers argued in court papers filed at the Supreme Court that while Congress clearly has an interest in protecting national security, the menu of options available “does not include suppressing the speech of Americans because other Americans may be persuaded.” The government did not even attempt to resolve its national security concerns by an alternative approach that would not violate free speech rights, they added.

TikTok’s supporters at the court include a cross-ideological array of public interest groups, including the left-leaning American Civil Liberties Union and the libertarian Cato Institute, that have joined the fight on free speech grounds.

The job of defending the law falls to Solicitor General Elizabeth Prelogar just a few days before she will leave her position.

In court papers, she argued among other things that the law does not even implicate the First Amendment, saying the potential ban “addresses the serious threats to national security posed by the Chinese government’s control of TikTok, a platform that harvests sensitive data about tens of millions of Americans and would be a potent tool for covert influence operations by a foreign adversary.”

The law does not place any restrictions on speech but instead prevents a “foreign adversary” from controlling it, she added.

Even if there are free speech concerns, they are minimal because the restrictions are not focused on suppressing specific speech based on what is being said or who is saying it, Prelogar said.

When speaking to the court on Friday, Prelogar said that “Americans are on this platform thinking that they are speaking to one another, and this recommendation engine that is apparently so valuable is organically directing their speech to each other. And what is covert is that the PRC, a foreign adversary nation, is instead exploiting a vulnerability system.”

Justice Elena Kagan responded that “everybody now knows that China is behind it” and compared the lack of disclosures around TikTok’s algorithm to other social media platforms, like X.

The federal government has the backing of Montana and 21 other states as well as former national security officials.

TikTok was launched in the U.S. in 2018 and has become increasingly popular, now claiming 170 million American users.

The algorithm provides users with streams of short-form video content that adjust based on their interests.