By Andrew Chung, John Kruzel and David Shepardson
WASHINGTON (Reuters) – The Supreme Court heard arguments on Friday over the legality of a statute that would ban or compel the sale of TikTok until Jan. 19 in the United States in a case pitting free speech rights against national security concerns among the general public. used an application for short videos owned by the Chinese company ByteDance.
TikTok and ByteDance, as well as some users who post content on the app, challenged the law, which was passed by Congress last year with strong bipartisan support and signed by outgoing Democratic President Joe Biden, whose administration is defending him in the case.
During the hearings, the justices examined the nature of TikTok’s speech rights and the government’s national security concerns. The discussions continued. A lower court rejected an argument made by opponents of the law that it violates the First Amendment to the US Constitution, which protects against government restrictions on free speech.
The Supreme Court is considering the case at a time of growing trade tensions between the world’s two largest economies. Republican Donald Trump, who is set to begin his second term as president on January 20, opposes the ban.
Noel Francisco, a lawyer for TikTok and ByteDance, told the judges that the app is one of the most popular voice platforms for Americans. Francisco said the real target of the bill is “speech itself — that fear that Americans, even if fully informed, might be persuaded by Chinese disinformation. That, however, is a decision that the First Amendment leaves to the people.”
“In short, this act should not stand,” Francisco said of the bill.
Francisco cited Trump’s position on the case.
On Dec. 27, Trump urged the Supreme Court to delay the Jan. 19 deadline for the asset sale to give his new administration “an opportunity to pursue a political resolution of the issues in the case.”
Francisco asked the justices to at least temporarily halt the law, “which will allow you to carefully consider this important issue and, for the reasons explained by the president-elect, potentially challenge the case.”
The Supreme Court weighed competing concerns — about free speech rights and the national security implications of a foreign-owned social network that collects data from a domestic user base of 170 million Americans, about half the US population.
Conservative Chief Justice John Roberts pressed Francisco on TikTok’s Chinese ownership and congressional findings.
“Should we ignore the fact that the ultimate parent is actually subject to doing intelligence work for the Chinese government?” Roberts asked. “It seems to me that you are ignoring the main concern of Congress here – which is China’s manipulation of content and the acquisition and harvesting of content.”
The Justice Department said TikTok poses a serious threat to US national security because of the risk that China could use this vast wealth of data on Americans for espionage or blackmail, or covertly manipulate the content they watch on the app to serve its own interests.
The platform’s powerful algorithm provides individual users with short videos tailored to their preferences. TikTok said the ban would hit its user base, advertisers, content creators and employee talent. TikTok has 7,000 American employees.
‘DIRECT FREIGHT’
Conservative Justice Clarence Thomas asked Francisco what TikTok speech was at issue in the case.
“TikTok, to its credit, uses an algorithm that it thinks reflects the best mix of content. What the law does is say that TikTok can’t do that unless ByteDance does a qualified takedown. That’s a direct burden on TikTok’s speech,” Francisco he said.
Francisco told conservative judge Amy Coney Barrett that the algorithm represented editorial discretion.
Thomas disputed Francisco’s argument that TikTok’s US operations have free speech rights.
“You’re turning a restriction on ByteDance’s ownership of the algorithm and the company into a restriction on TikTok’s speech. So why can’t we just see it as a restriction on ByteDance?” asked Thomas.
Liberal Justice Elena Kagan noted that TikTok has First Amendment rights.
“I guess my question is: How did those First Amendment rights really come to be implied here?” Kagan asked Francisco. “This statute says that a foreign company must be sold. Whether it’s feasible or not, however long it takes, TikTok still has the ability to use whatever algorithm it wants, right?”
“No, your honor,” Francisco replied, noting the deadline.
“In 10 days, TikTok wants to talk. In 10 days, because this bill is passed, TikTok can’t talk unless ByteDance does a qualified takeover,” Francisco said.
The Justice Department said the law targets control of the app by a foreign adversary, not protected speech, and that TikTok would be able to continue operating as is if freed from China’s control.
Francisco hypothesized that the Chinese government had taken the children of Washington Post owner Jeff Bezos hostage to force him and his newspaper to publish “whatever they wanted on the front page of the Post, so China is effectively in total control.”
“I still don’t think Congress could come in and tell Bezos to either sell the Post or shut it down, because that would violate Bezos’ rights and the Washington Post’s rights,” Francisco said.
Francisco emphasized the impact of allowing Congress to ban TikTok — “which means the government could really come in and say, ‘I’m going to shut down TikTok because it’s too pro-Republican or too pro-Democratic, or it’s not going to spread the speech that I want, and that wouldn’t be possible by anybody reconsideration of the First Amendment.”
TikTok, ByteDance and the app’s users, seeking an injunction to stop the ban, appealed to the U.S. Court of Appeals for the District of Columbia Circuit on Dec. 6, which upheld the law.
