Justices Seem Inclined to Uphold Law That Could Shut Down TikTok

WASHINGTON — Over the course of more than two hours of oral arguments, a majority of Supreme Court justices appeared to be inclined to uphold a federal law passed last year that would require that TikTok be sold or face being shut down in the United States.

At the center of the case is the Protecting Americans from Foreign Adversary Controlled Applications Act, a measure intended to both prevent China from using the popular social media platform to spread disinformation and keep it from harvesting personal information from unwitting users here.

It has been estimated that as many as 170 million Americans are on the platform, which is owned by Beijing-based ByteDance.

The bill, passed by a 352-65 vote in the House last spring, requires ByteDance to divest of TikTok by Jan. 19. It later passed in the Senate, 79-18, after it was rolled into a foreign aid package with significant bipartisan support.

President Joe Biden signed the bill into law in April.

Since then, the company has waged a battle for survival based primarily on the premise that as a business operating in the United States, it has a First Amendment right to free speech and that the new law infringes on that right.

Arguing for TikTok, former U.S. Solicitor General Noel Francisco tried to keep the justices focused on the potential First Amendment implications of the case.

The law “ultimately boils down to speech,” he said, noting that while a number of Chinese e-commerce sites also collect user data, none of them is facing a similar ban in the United States.

“I think TikTok has First Amendment rights. To the extent that ByteDance is speaking in the United States, it, I believe, has First Amendment rights,” Francisco said.

“If you conclude that neither has First Amendment rights, then surely the creators have First Amendment rights,” he continued.

What the lawmakers and other supporters of the bill are arguing, he said, was completely the opposite: that “none of these entities … have the authority to assert First Amendment rights.

“That means that the government really could come in and say, ‘I am going to shut down TikTok because it is too pro-Republican or too pro-Democrat, or won’t disseminate the speech I want,’ and that wouldn’t get First Amendment scrutiny by anybody. 

“That cannot possibly be the case, but that is the effect of their position,” Francisco  said.

Though several justices expressed at least some concern over the First Amendment implications of the case, Chief Justice John Roberts had his doubts about Francisco’s argument.

He asked whether the veteran member of the Supreme Court bar could point to any other instance where a regulation of corporate structure had also been construed to be a regulation of “expressive conduct.”

Francisco admitted he couldn’t come up with any.

“Congress doesn’t care about what’s on TikTok,” 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 the Chinese have to stop controlling TikTok.”

“So, it’s not a direct burden on the expression at all,” he said.

The current solicitor general, Elizabeth Prelogar, who was arguing on behalf of the government, went a step further to undermine ByteDance’s contention, pointing out that “all of the same speech that’s happening on TikTok [now] could happen post-divestiture.”

“The act doesn’t regulate that at all,” she said. “It’s not saying, ‘You can’t have pro-China speech. You can’t have anti-American speech.’ It’s not regulating the algorithm. TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users. 

“All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform,” Prelogar said.

Justice Amy Coney Barrett readily agreed.

“The law doesn’t say TikTok has to shut down,” Barrett said a short time later. “It says ByteDance has to divest.”

What seemed to trouble a majority, if not all, of the justices most, was what China might do with the data TikTok collects.

“That seems like a huge concern for the future of the country,” Justice Brett Kavanaugh said.

“Congress and the president were concerned that China was accessing information about millions of Americans, tens of millions of Americans, including teenagers, people in their 20s, that they would use that information over time to develop spies to turn people, to blackmail people, people who, a generation from now, will be working in the FBI and the State Department,” Kavanaugh continued.

“Is that not a realistic assessment by Congress and the president of the risks here?” he asked.

“I am not disputing the risks,” Francisco replied. “I am disputing the means that they have chosen to address it.”

Justice Neil Gorsuch tried to come at the issue from a different direction, asking Prelogar why the government’s concerns about TikTok didn’t extend to a foreign company owning a U.S. news outlet, specifically pointing to the German ownership of Politico.

“We are not asking the court to articulate bright line rules to govern all kinds of hypothetical situations,” the solicitor general said.

She went on to say that a publican is “not likely to be collecting sensitive information about 170 million-plus people and then having the capacity to send that back to a foreign adversary.”

Francisco later tried to turn down the temperature of the debate, by suggesting that issuing a preliminary injunction or an administrative stay would “buy everyone a little breathing space.” 

“A short reprieve here would make all the sense in the world,” he said.

A short reprieve could be all ByteDance needs.

President-elect Donald Trump, a supporter of ByteDance’s divestiture of TikTok during his first term, is now opposed to the new law.

In fact he tried, unsuccessfully, to get the Supreme Court to delay hearing the case.

Francisco pointed out that Trump could extend the deadline as president, but he won’t be sworn in to his second term until the day after the deadline set by the law passes.

“It is possible that come Jan. 20, 21, 22, we might be in a different world,” he said.

Dan can be reached at [email protected] and @DanMcCue