Unlock the White House Watch newsletter for free
Your guide to what the 2024 US election means for Washington and the world
US Supreme Court justices appeared skeptical on Friday of TikTok’s bid to overturn the federal “fire or ban” law, as the social media platform warned it could “go black” in one of its biggest markets in nine days .
Friday’s oral arguments focused on whether legislation that would force TikTok’s Chinese parent should be allowed to go into effect ByteDance to relinquish the platform by Jan. 19 — the day before Donald Trump’s inauguration as president — or face a nationwide ban.
The law, passed with strong bipartisan support last year, was prompted by concerns that Beijing could use the video platform, which has exploded in popularity among teenagers and now has 170 million US users, for espionage or spreading propaganda.
TikTok denied the charges and argued that the law violates the First Amendment’s right to free speech. Meanwhile, Trump vowed to “save the app” and asked the top court to delay the legal deadline to allow “an opportunity to proceed political solution of disputed issues in the case” when he returns to the White House later this month.
Either way, the court’s decision will have broad implications for free speech in the US, as well as global relations with China.
During Friday’s oral arguments, judges from across the ideological spectrum repeatedly challenged TikTok’s arguments that the law is an attack on free speech, focusing instead on the concerns the platform is being used for “covert manipulation” and its data is vulnerable to harvesting by Beijing.
TikTok’s lawyer, Noel Francisco of Jones Day, said the law singles out the company “for uniquely harsh treatment, and it does so because the government fears that China may indirectly pressure TikTok in the future.”
Chief Justice John Roberts, a member of the court’s conservative wing, responded: “So should we ignore the fact that the ultimate parent is actually subject to doing intelligence work for the Chinese government?”
Justice Elena Kagan, part of the court’s liberal wing, acknowledged that the company “is going to suffer pretty hard [but] accidental effects”. If TikTok ultimately loses access to ByteDance’s algorithm as a result of the sale, the law still “leaves TikTok the ability to do what any other actor in the United States can do, which is to find the best algorithm available,” she said.
Elizabeth Prelogar, the US attorney general, emphasized the government’s national security argument. Beijing’s efforts to undermine the US by collecting “sensitive data” on Americans and its ability to force companies to hand over such material “mean that the Chinese government could use TikTok as a weapon at any time to harm the United States,” she said.
She said ByteDance has already agreed to Beijing’s demands, stating that there is evidence that it “took actions to misappropriate data . . . to monitor dissidents in Hong Kong [and] Uighurs in China”.
ByteDance also “misappropriated US data” when it admitted to improperly obtaining the data of two US journalists, including Financial Times reportershe added.
TikTok argued that the spin-off would be technically “unfeasible” ahead of schedule. Beijing, which would have a say under China’s export laws, also said it opposed the sale and branded the bill a “blatant act of commercial robbery.” Francisco, TikTok’s lawyer, reiterated this on Friday, saying a takeover would be “extremely difficult in any time frame”.
Asked what will happen on January 19 if the company loses this case, Francisco replied: “My understanding is that we are going dark.”
The court is expected to rule before the January 19 deadline, potentially sealing the fate of the leading source of entertainment and news for young people, which has provided a livelihood for thousands of influencers as well as attracting top advertising revenue.
Even if the court rules against TikTok, Trump could intervene once he’s in office, though it’s not clear how. The president-elect’s surprise rescue mission via the video app came in part after he used the platform during last year’s election campaign to engage with young voters.
It also comes as Trump said he wants to preserve “competition” in a market dominated by Mark Zuckerberg’s Meta, after criticizing the US social network as “the enemy of the people” for allegedly censoring conservative content.
