Tik Tok creators gather before a press conference to voice their opposition to the “Protecting Americans from Foreign Adversary Controlled Applications Act,” pending crackdown legislation on TikTok in the House of Representatives, on Capitol Hill in Washington, U.S., March 12, 2024.
Craig Hudson | Reuters
The Supreme Court on Friday heard oral arguments in the case involving the future of TikTok in the United States, and a law which 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 U.S. Constitution’s free speech protections.
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 could change about the user experience?
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. However, those users would likely be unable to update or redownload the app after that date, multiple legal experts said.
Thousands of short-form video creators who generate income from TikTok through ad revenue, paid partnerships, merchandise and more will likely need to transition their businesses to other platforms, like YouTube or Instagram.
“Shutting down TikTok, even for a single day, would be a big deal, not just for people who create content on TikTok, but everyone who shares or views content,” said George Wang, a staff attorney at the Knight First Amendment Institute who helped write the institute’s amicus briefs on the case.
“It sets a really dangerous precedent for how we regulate speech online,” Wang said.
Who supports and opposes the ban?
Dozens of high-profile amicus briefs from organizations, members of Congress and President-elect Donald Trump were filed supporting both the government and ByteDance.
The government, led by Attorney General Merrick Garland, alleges that until ByteDance divests TikTok, the app remains a “powerful tool for espionage” and a “potent weapon for covert influence operations.”
Trump’s brief did not voice support for either side, but it did ask the court to oppose banning the platform and allow him to find a political resolution that allows the service to continue while addressing national security concerns.
The short-form video app played a notable role in both Trump and Democratic nominee Kamala Harris’ presidential campaigns in 2024, and it’s one of the most common news sources for younger voters.
In a September Truth Social post, Trump wrote in all caps Americans who want to save TikTok should vote for him. The post was quoted in his amicus brief.
What comes next?
It’s unclear when the Supreme Court will issue its ruling, but the case’s expedited hearing has some predicting that the court could issue a quick ruling.
The case will have “enormous implications” since TikTok’s user base in the U.S. is so large, said Erwin Chemerinsky, dean of Berkeley Law.
“It’s unprecedented for the government to prohibit platforms for speech, especially one so many people use,” Chemerinsky said. “Ultimately, this is a tension between free speech issues on the one hand and claims of national security on the other.”
This is a developing story, please check back for updates.
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