The Supreme Court heard oral arguments Friday in a case involving the future of TikTok in the United States, and a law that could effectively ban a popular app already next week.
Act to protect Americans from applications controlled by foreign adversaries targets TikTok will also impose stiff civil penalties on app “entities” that provide the service after the January 19 deadline. Among several questions the justices considered was whether the law violated constitutional protections of free speech.
During a hearing that lasted more than two hours, judges repeatedly questioned TikTok’s general counsel about the social media platform’s ties to the People’s Republic of China. They generally seemed unconvinced by TikTok’s main argument, that the law violates the free speech rights of millions of its individual users in the United States.
Still, questions remain about the newly elected president Donald Trumpwillingness to implement the law once he takes office, just one day after it takes effect. If Trump chooses not to enforce the violations, third-party service providers like Apple and Google they will face a dilemma: should they follow the letter of the law or rely on the new administration’s assurances that they can effectively ignore it.
Cornell University law professor Gautam Hans said in a statement that “the consensus that the Court will allow the ban to take effect appears to be correct.”
“What remains deplorable is the gullibility with which many judges have treated this law, which clearly implicates the right to free speech on ill-defined grounds of national security,” Hans said.
The TikTok argument
Noel Francisco, the US attorney general during President-elect Donald Trump’s first term, opened the hearing as TikTok’s legal representative. He repeated Trump’s wish for court to terminate the effective banto give Trump time to find a political solution national security concerns surrounding TikTok.
Judges peppered Francisco with questions about TikTok’s ties to China-based ByteDance, which owns the social media service, and questioned TikTok’s First Amendment rights violations.
Much of the court’s investigation focused on TikTok’s ownership structure. When Justice Samuel Alito asked Francisco if he would make the same argument if TikTok was directly owned by the Chinese government, TikTok’s lawyer said he wouldn’t.
But Francisco also insisted that Beijing is not forcing TikTok to make content decisions.
“We absolutely resist any manipulation of content by China,” Francisco said. Court observers noted his careful use of the word “resist,” rather than, for example, “refuse.”
O’Melveny & Myers special counsel Jeffrey Fisher argued on behalf of TikTok content creators challenging the law.
In the interest of national security, “Congress can prohibit Americans … from associating with terrorist organizations,” Fisher said. But “the government just doesn’t get to come in and say ‘national security,’ and the case is over.”
“You have to dig below what the national security claim is,” Fisher said.
The government’s case
Much of the argument in support of the bill to sell TikTok has so far been based on the claim that TikTok does indeed pose a threat to national security. That was the crux of US Attorney Elizabeth Prelogar’s argument.
Americans who use TikTok may believe “they’re talking to each other,” Prelogar said. But in reality, “PR China, a foreign adversary nation, is instead exploiting a vulnerability in the system.”
The judiciary questioned Prelogar on how TikTok differs from other foreign-owned publications, such as Politico and Oxford University Press.
“China is a foreign enemy nation that seeks every opportunity to weaken the United States,” she said. “If he has control over [TikTok]it is difficult to predict exactly how they will use it as a tool to harm our interests.”
But we know that they will try, said Prelogar.
“What we are trying to prevent is not a specific topic, specific positions, but the technical possibility of a foreign adversary state to use the communication channel,” said Prelogar.
Regarding whether the new Trump administration can extend the deadline for passing the law, Prelogar said that the US government has not yet taken a position on it.
“We didn’t implement it, partly because it just wasn’t presented here,” Prelogar said.
Trump will be inaugurated on January 20th, and the sales deadline is January 19th.
As for whether President-elect Trump could choose not to implement the law, Prelogar said that “raises a tricky question.”
It’s unclear when the court will make a decision, and if China’s ByteDance continues to refuse to hand over TikTok to the US company, it faces an outright ban across the country.
What are the potential impacts on users?
TikTok’s roughly 115 million US monthly active users could face a number of scenarios depending on when the Supreme Court rules.
If nothing is released before the law goes into effect on January 19 and the ban passes, it’s possible that users will still be able to post or interact with the app if they’ve already downloaded it. However, those users likely won’t be able to update or re-download the app after that date, a number of legal experts said.
The thousands of short-form video creators who generate revenue from TikTok through ad revenue, paid partnerships, merchandise and more will likely have to shift their businesses to other platforms, such as YouTube or Instagram.
“Shutting down TikTok, even for a day, would be a big deal, not just for the people who create content on TikTok, but for everyone who shares or views content,” said George Wang, an attorney with the Knight First Amendment Institute who helped write the filings. friends of the institute about the case.
“It sets a really dangerous precedent for how we regulate speech on the Internet,” Wang said.
What comes next?
It is unclear when the Supreme Court will rule, but the expedited hearing of the case has some predicting that the court could issue a quick ruling.
The case will have “huge implications” because TikTok’s US user base is so large, said Erwin Chemerinsky, dean of Berkeley Law.
“It’s unprecedented for a government to ban a speech platform, especially one that is used by so many people,” Chemerinsky said. “Ultimately, this is a tension between free speech issues on the one hand and national security claims on the other.”
“There are valid reasons to be concerned about privacy and data collection,” said Cornell’s Hans.
“But this bill specifically targets one platform in a way that should make us all wonder whether future government action will target other speech platforms.”
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