The Supreme Court on Friday upheld a federal law that would have banned Chinese-owned social media platform TikTok just two days before a bipartisan sales bill was set to take effect.
At issue was the Protecting Americans from Apps Controlled by a Foreign Adversary Act, a law passed by Congress last April with broad bipartisan support. Law gave TikTok nine months to either split from its Chinese parent ByteDance or be removed from US app stores and hosting services.
In passing the legislation, Congress cited concerns about Chinese ownership of the app, which members said meant the app had weaponization potential or used to collect vast amounts of user data, including from the approximately 170 million Americans who use TikTok.
TikTok, ByteDance and several of the app’s users quickly sued to block the ban in May, arguing the law would curtail free speech for the millions of Americans who use the platform. After a lower court upheld the ban, the Supreme Court agreed to hear TikTok’s emergency request to either block or pause enforcement of the law under an accelerated deadline just nine days before the ban was due to take effect.
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The US Supreme Court building in Washington, DC (Drew Angerer/AFP via Getty)
During oral arguments, lawyers for the Biden administration reiterated the argument that China’s ownership of TikTok poses a “serious” national security risk to American users.
US Attorney General Elizabeth Prelogar cited risks that China could use the app as a weapon, including manipulating its algorithm to prioritize certain content or ordering parent company ByteDance to hand over vast amounts of user data collected by TikTok on US users.
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The TikTok app is seen on the phone screen alongside other social media platforms. ((Yui Mok/PA Images via Getty Images))
TikTok’s lawyers, meanwhile, tried to frame the case primarily as a limitation on free speech protections under the First Amendment, which the company argued applied to TikTok’s founding in the US.
Noel Francisco, TikTok’s lawyer, argued that the US government has “no valid interest in preventing foreign propaganda” and reiterated TikTok’s position that the platform and its owners should be entitled to the highest level of free speech protection under the US Constitution.
Francisco also argued that TikTok cannot be separated from its Chinese parent company, citing parts of its source code and intellectual property located in China.
First Amendment protections it must be considered under strict scrutiny, which requires the government to bear a greater burden of proof in justifying the constitutionality of the law.
Specifically, laws dealing with First Amendment protections must be crafted to serve a compelling government interest, narrowly tailored to achieve that interest.
It is a difficult legal test to satisfy in court. But the U.S. Court of Appeals for the District of Columbia Circuit used it last month in a review of the forfeiture law and still upheld it — outlining how the Supreme Court could theoretically consider a case under strict scrutiny and still choose to uphold the law.
During oral arguments at the Supreme Court, several justices appeared skeptical of the company’s core argument, which is that the law is a restriction on speech.
“What exactly is TikTok talk here?” Judge Clarence Thomas asked in the opening moments of oral arguments in an early sign of the court’s apparent doubt that the law was in fact a violation of the First Amendment.
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President-elect Trump is shown in front of the TikTok logo. (Getty Images)
The Supreme Court and its conservative 6-3 majority have historically been deferential to Congress on national security issues.
The asset forfeiture bill in question passed Congress last year under the guidance of top Justice Department officials, who worked directly with House lawmakers to write the bill and help it withstand potential legal challenges.
But it also comes at a time when President-elect Trump is signaled apparent support for the application in recent months.
In December, Trump hosted TikTok CEO Shou Zi Chew at his Mar-a-Lago resort and later told reporters that his new administration would “take a look at TikTok” and the sale case.
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Lawyers for the president-elect also filed a brief with the Supreme Court last month, asking the justices to delay any decision in the case until after Trump’s inauguration on January 20.
The brief did not indicate how Trump might proceed, but cited his request that the court pause the ban until Trump’s inauguration.
