David Shepardson
WASHINGTON (Reuters) – A lawyer for TikTok and its Chinese parent ByteDance issued a warning during Supreme Court arguments over legislation that would force the short-video app to be sold or banned in the United States: If Congress could do it to TikTok, it could after other companies.
The law, which was the subject of arguments before nine judges on Friday, sets a Jan. 19 deadline for ByteDance to sell the popular social media platform or face a national security ban. The companies have sought, at a minimum, a delay in implementing the law, which they say violates the First Amendment to the US Constitution, which protects against government restrictions on free speech.
Noel Francisco, representing TikTok and ByteDance, argued that the Supreme Court’s upholding of the law could allow statutes to target other companies on similar grounds.
“AMC theaters were owned by a Chinese company. Under this theory, Congress could order AMC theaters to censor any movies that Congress didn’t like or promote movies that Congress wanted,” Francisco told the judges.
The justices signaled with their questions during the hearings that they were inclined to uphold the law, although some expressed serious concerns about its First Amendment implications.
TikTok is a platform used by about 170 million people in the United States, roughly half of the country’s population. Congress passed the measure last year with strong bipartisan support, as lawmakers cited the risk that the Chinese government was exploiting TikTok to spy on Americans and conduct covert influence operations.
Jeffrey Fisher, a lawyer representing TikTok content creators who also challenged the law, noted during arguments at the Supreme Court that Congress focused on TikTok with the measure, rather than major Chinese online retailers, including Tema.
“Would Congress (that is) really concerned about these very dramatic risks leave out an e-commerce site like Temu that is used by 70 million Americans?” Fisher asked. “It’s very strange why you single out just TikTok and not other companies with tens of millions of people whose own data is taken, you know, in the process of engaging with those websites and is just as, if not more, accessible to Chinese control.”
Democratic President Joe Biden signed the measure and his administration is defending it in this case. The deadline for the sale is just one day before Republican Donald Trump, who opposes the ban, takes office as Biden’s successor.
‘FOREIGN OPPONENTS’
Attorney General Elizabeth Prelogar, advocating for the Biden administration in defense of the law, said it was critical that it take effect on Jan. 19 as planned to force ByteDance to act on the asset forfeiture.
Foreign adversaries are not happy to give up control over this channel of mass communications in the US, Prelogar said.
“When push comes to shove and those restrictions go into effect, I think it’s going to fundamentally change the landscape in terms of what ByteDance is willing to consider. And that might just be the jolt that Congress expected the company to have to move forward with the process.” sales”, said Prelogar.
If the ban goes into effect on Jan. 19, Apple (NASDAQ: ) and Alphabet (NASDAQ: ) Google will no longer be able to offer TikTok for download to new users, but existing users can still access the app. The US government and TikTok agree that the app would degrade and eventually become unusable over time because the companies would not be able to offer support services.
The Supreme Court also debated whether the possibility that TikTok was being used for clandestine influence campaigns or propaganda purposes by China justified its ban.
“Look, everybody is manipulating the content,” Francisco told the court. “There are a lot of people who think that CNN, Fox News, the Wall Street Journal, The New York Times (NYSE:) manipulate their content. That’s fundamental protected speech.”
On Dec. 27, Trump appealed to the court to delay the Jan. 19 deadline to give his new administration “an opportunity to seek a political resolution to the issues in the case.”
Under the law, the US president has the power to extend the January 19 deadline by 90 days, but under circumstances that do not appear applicable to the current situation where ByteDance has made no apparent attempt to sell TikTok’s US assets. The law requires the president to certify that significant progress has been made toward the sale, along with binding legal agreements.
Regardless, Trump doesn’t become president until after his term expires — though Francisco said “we might be in a different world” when Trump returns to the White House.
Judge Brett Kavanaugh asked Prelogar if the president “can say we’re not going to enforce this law?”
“I think that in general, of course the president has discretion,” said Prelogar.
“Again, that’s one of the reasons why I think it makes perfect sense to issue a preliminary injunction here and just give everybody some breathing room,” Francisco said.
