Supreme Court skeptical toward TikTok arguments against looming US ban

WASHINGTON — Supreme Court justices indicated skepticism on Friday toward a challenge by TikTok and its Chinese parent company ByteDance to a law that would force a sale or ban the widely used short-video app by Jan. 19 in the United States in a case that pits free speech rights against American national security concerns.

TikTok and ByteDance, as well as some users who post content on the app, have challenged a law passed by Congress with strong bipartisan support last year and signed by outgoing Democratic President Joe Biden, whose administration is defending it.

During about 2½ hours of arguments, some of the justices seemed to acknowledge the national security concerns of Congress — that the app would enable China's government to spy on Americans and carry out covert influence operations — given that TikTok is owned by what lawmakers deemed a foreign adversary.

But some of the justices also voiced concerns about the law's implications toward free speech. Conservative Justice Samuel Alito floated the possibility of the court issuing what is called an administrative stay that would put the law on hold temporarily while the justices decide how to proceed.

Conservative Chief Justice John Roberts pressed Noel Francisco, a lawyer for TikTok and ByteDance, on TikTok's Chinese ownership and the concerns of Congress.

"Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?" Roberts asked. "It seems to me that you're ignoring the major concern here of Congress — which was Chinese manipulation of the content and acquisition and harvesting of the content."

TikTok, ByteDance and the app users appealed a lower court's ruling that upheld the law and rejected their argument that it violates the U.S. Constitution's First Amendment protection against government abridgment of free speech.

The Supreme Court's consideration of the case comes at a time of rising trade tensions between the world's two biggest economies. Republican Donald Trump, due to begin his second term as president on Jan. 20, opposes the ban.

Francisco told the justices that the app is one of the most popular speech platforms for Americans and that it would essentially shut down on Jan. 19 without a divestiture. Francisco said the real target of the law "is the speech itself — this fear that Americans, even if fully informed, could be persuaded by Chinese misinformation. That, however, is a decision that the First Amendment leaves to the people."

"In short, this act should not stand," Francisco said of the law.

Francisco cited Trump's stance on the case.

Trump on Dec. 27 called on the Supreme Court to put a hold on the Jan. 19 deadline for divestiture to give his incoming administration "the opportunity to pursue a political resolution of the questions at issue in the case."

Francisco asked the justices to, at a minimum, put a temporary hold on the law, "which will allow you to carefully consider this momentous issue and, for the reasons explained by the president-elect, potentially moot the case."

The Supreme Court was weighing competing concerns — about free speech rights and about the national security implications of a social media platform with foreign owners that collects data from a domestic user base of 170 million Americans, about half the U.S. population.

"Congress doesn't care about what's on TikTok," Roberts added. "... They're not saying, 'TikTok has to stop.'" Instead, Roberts said, Congress was saying China must stop controlling TikTok.

"So it's not a direct burden" on free speech, Roberts added.

Referring to ByteDance, Liberal Justice Elena Kagan told Francisco that the law "is only targeted at this foreign corporation, which doesn't have First Amendment rights."

But Kagan then raised the hypothetical of whether Congress could have forced the American Communist Party to divorce itself from the Soviet Union in the 1950s.

"Content manipulation is a content-based rationale: we think that this foreign government is going to manipulate content in a way ... that concerns us and may very well affect our national security interests. That's exactly what they thought about Communist Party speech in the 1950s, which was being scripted in large part by international organizations or directly by the Soviet Union."

'Geopolitical goals'

U.S. Solicitor General Elizabeth Prelogar, arguing for the Biden administration, said Chinese government control of TikTok poses a grave threat to American national security. TikTok's immense data set on its American users and their non-user contacts gives the China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government "could weaponize TikTok at any time to harm the United States."

Prelogar said the First Amendment does not bar Congress from taking steps to protect Americans and their data.

"The national security harm arises from the very fact of a foreign adversary's capacity to secretly manipulate the platform to advance its geopolitical goals in whatever form that kind of covert operation might take," Prelogar said.

The platform's powerful algorithm feeds individual users short videos tailored to their liking. TikTok has said that the ban would hit its user base, advertisers, content creators and employee talent. TikTok has 7,000 U.S. employees.

Prelogar said the Jan. 19 deadline could finally force ByteDance to seriously begin the process of divesting TikTok.

Conservative Justice Clarence Thomas asked Francisco what is TikTok's speech at issue in the case.

"TikTok, you honor, uses an algorithm that, in its view, reflects the best mix of content. What the act does is it says TikTok cannot do that unless ByteDance executes a qualified divestiture. That's a direct burden on TikTok's speech," Francisco said.

Francisco told conservative Justice Amy Coney Barrett that the algorithm represents editorial discretion.

Thomas challenged Francisco's argument that TikTok's U.S. operations have free speech rights.

"You're converting the restriction on ByteDance's ownership of the algorithm and the company into a restriction on TikTok's speech. So why can't we simply look at it as a restriction on ByteDance?" Thomas asked.

'Go dark'

Kagan noted that TikTok does have First Amendment rights.

"I guess my question is: how are those First Amendment rights really begin implicated here?" Kagan asked Francisco. "This statute says the foreign company has to divest. Whether or not that's feasible, however long it takes, TikTok still has the ability to use whatever algorithm it wants, doesn't it?"

"No, you honor," Francisco responded, noting the looming deadline.

"In 10 days, TikTok wants to speak. In 10 days, because this law was passed, TikTok cannot speak unless ByteDance executes a qualified divestiture," Francisco said.

Francisco told conservative Justice Brett Kavanaugh that on Jan. 19 "at least as I understand it we (TikTok) go dark. Essentially, platform shuts down unless there's a divestiture, unless President Trump exercises his authority to extend it." But Trump could not do that on Jan. 19 because he does not take office until the following day, Francisco said.

"It is possible that come Jan. 20, 21 or 22, we might be in a different world," Francisco added, which he called one of the reasons why the justices should issue a temporary pause on the law to "buy everybody a little bit of breathing space."

Responding to Barrett, Francisco said it could take "many years" for ByteDance to divest TikTok.

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