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Supreme Court majority likely to uphold controversial ban on TikTok over concerns over ties to China, with justices asking pointed questions to lawyers for the social media app and a group of its content creators is being cast.
During more than two hours of oral arguments, many of the justices viewed the divestment law, approved by Congress in April, not as primarily related to the First Amendment, but rather as a potential foreign control. They seemed to see it as an effort to regulate the situation. App used by 170 million Americans.
The law would restrict the app’s operations in the U.S. unless China-based parent company ByteDance withdraws from the platform, and would go into effect on January 19 unless a high court issues a temporary injunction. It’s planned. A decision on this issue, and therefore an effective date for the ban, could be decided quickly, long before judges resolve fundamental questions about protected speech.
Two presidents, Donald Trump and Joe Biden, have raised concerns about both content manipulation and data collection practices on the platform in the past. TikTok insisted these concerns were speculative and resisted any suggestion that the Chinese government was involved in selecting the cat videos, recipes and news that millions of Americans watch on the app.
Here are key takeaways from Friday’s oral argument.
Justices across the ideological spectrum raised questions about whether TikTok’s ban implicated the First Amendment. This is a bad sign for TikTok. Because to win, he needed to first prove that the First Amendment applied to the case, and then prove that the law did not meet that test.
Chief Justice John Roberts said in an exchange with lawyers for the app’s users that Congress “didn’t have a problem with the language” in passing the law.
“They decided they weren’t comfortable with a foreign adversary collecting this much information about the 170 million people who use TikTok,” he said.
Roberts also pressed TikTok’s lawyers about the lack of precedent for courts striking down laws designed to regulate a company’s corporate structure on First Amendment grounds.
Justice Elena Kagan also asked questions that suggested she wasn’t even sure whether the First Amendment applied to the case, but she also asked skeptical questions of the government later in the argument.
“This law only targets this foreign company, which has no First Amendment rights,” she told lawyers arguing on TikTok’s behalf.
Traditionally, the Supreme Court has deferred to other branches of government when it comes to national security. That’s exactly why Attorney General Elizabeth Preloger placed so much emphasis on this issue during argument.
“For years, the Chinese government has been trying to figure out details about Americans, including where we live and work, who our friends and colleagues are, what our interests are, and what our vices are. Mr. Preloger made the final argument on behalf of the Chinese government. The Biden administration told the Supreme Court:
TikTok’s “vast data set” will give China “powerful tools for harassment, recruitment, and espionage,” she said.
That argument seemed persuasive to both Roberts and Brett Kavanaugh, another conservative justice often at the court’s ideological center.
Congress and President Kavanaugh have argued that “China has access to information about millions of Americans, tens of millions of Americans, including people in their teens and 20s,” and that China is using that information to “direct people to “I’m concerned that it could be used to blackmail people,” he said. These are people who will be working in the FBI, CIA, or the State Department a generation from now. ”
Throughout the debate process, conservative Justice Neil Gorsuch appeared to be most concerned about the ban.
“Don’t we usually think that the best solution to problematic speech is to fight speech?” Gorsuch said Congress should consider warning labels for platforms rather than outright bans. I took up the suggestion from TikTok and asked the question.
“TikTok could survive putting a disclaimer on its website that it could be secretly manipulated by China,” Gorsuch said.
Mr. Gorsuch balked at the government’s theory that courts that have steadily expanded First Amendment rights over the decades do not apply in this case. To highlight these concerns, he raised a hypothesis regarding foreign newspapers. Is it possible that the government would try to shut down the virtual platform on that basis, he asked?
‘I’ll lose the community I built’: TikTok creators prepare for ban
One key difference between newspapers and social media platforms is that they operate on the premise that social media users are “serving videos organically based on recommendation engines,” Prelogar said. answered. Newspapers function more like a one-way communication mode, she says.
Kagan asked difficult questions on both sides of the case and raised similar themes. He pointed to the country’s history of allowing foreign messages to flow into the United States, including communist propaganda at the height of the Cold War, which may have had ties to the Soviet Union.
“You know, in the mid-20th century, we were very concerned about the Soviet Union and what they were doing in this country,” Kagan said.
If Congress had told the Communist Party of the United States that it needed to sever ties with the Soviet Union, “would you absolutely have been OK with that?”
Unless the Supreme Court’s legislation blocks the law, TikTok will “cease operations” starting January 19, attorney Noel Francisco said.
“My understanding is that on January 19th we were shut down,” he said.
Francisco, who served as attorney general in the Trump administration, said he expected TikTok to be removed from app stores “at a minimum.”
“But in addition, what this law provides is that all other types of service providers cannot provide services either,” he added. “Violating this now has significant repercussions for service providers.”
If TikTok is removed by the app store operator, new users will no longer be able to download it. For existing users who already have the app installed on their phones, the app won’t disappear, but it can’t be updated via the app store, so it could end up being buggy and full of security vulnerabilities. There is.
But even if the courts uphold the ban, considerable uncertainty remains regarding the app’s accessibility under the Trump administration. President Trump has said he wants to save TikTok, and the law gives him broad discretion over enforcement.
“When January 20th, 21st, 22nd comes around, we may be in a different world,” Francisco said.
Preloger did not say whether Trump could extend the deadline after it has already passed.
“It may just be a shock that Congress expected that once pressure mounts and these restrictions go into effect, the company would actually have to move forward with the sale process,” Preloger said.
The justices have filed briefs asking the court to suspend enforcement of the Jan. 19 ban to give Trump time to negotiate as president, even though he has not yet been sworn in. There was no escaping the fact that they had taken measures to hide the situation. Trade with TikTok.
Mr. Alito, a conservative who has often battled with Mr. Prelgore, asked the attorney general whether the court would have the power to impose a so-called administrative stay, a measure that effectively grants what President Trump had sought. I asked if it was.
Preloger said if the court needs more time to decide the case, it does have the power to do so, but the court has been fully briefed and is currently hearing arguments.
Previous exchanges about President Trump’s ability not to enforce the ban prompted Kavanaugh’s questions about whether TikTok could rely on assurances of a ban from the president-elect to decide its next action. Ta.
As the attorney general’s presentation drew to a close, liberal Justice Sonia Sotomayor returned to the idea with a caveat.
“If a law is in force and prohibits certain conduct, the suggestion that the next president or any other person not enforce that law would mean that a company would disregard enforcement of any warranties other than the warranties below. “I’m a little concerned that we might choose to change that law,” she said, stressing that the company would be breaking the law in that scenario.
“No matter what the new president does, the reality for these companies is not going to change,” she says.
This story has been updated with additional details.
