Washington On Friday, it seemed likely that the Supreme Court will maintain a legislation that would essentially outlaw the social networking app TikTok in the US.
At least a preliminary ruling is expected in the coming days, if not hours, after the nine justices on the conservative-majority court heard oral arguments from attorneys for TikTok, some of its users, and the Biden administration.
Even while the judges didn’t seem to be persuaded by TikTok’s arguments regarding free speech, there is still some doubt about the court’s decision in this case, particularly since President-elect Donald Trump will take office one day after the law’s effective date of January 19. Even if the court decides against TikTok, it still has the power to temporarily halt the law.
In order to pursue a political settlement of the conflict when he takes office, Trump filed an unprecedented brief with the Supreme Court, requesting that the justices temporarily stop the statute.
The law, which was passed with widespread bipartisan support, mandates that ByteDance, the owner of TikTok, which is based in China, sell out its stake in the business. The platform that millions of Americans use would “go dark,” according to the company’s attorney, Noel Francisco, if no sale occurs.
TikTok and a few of its users filed a lawsuit to have the measure blocked, claiming it infringed upon their First Amendment rights to free speech.
Because of worries that the Chinese government would have control over the platform, the court is evaluating those arguments against the government’s justification of the statute on the basis of national security.
The justices seemed willing to at least accept some of the government’s national security arguments regarding concerns about the collection of data from American users, even though they voiced some concerns about the law bringing up free speech issues, particularly in relation to the platform’s content moderation policies.
The government’s data gathering justifications, according to Justice Brett Kavanaugh, were “very strong,” but the worries about the Chinese government controlling content “raise much more challenging questions.”
Chief Justice John Roberts also appeared hesitant to cast doubt on Congress, pointing to its conclusions that ByteDance must cooperate with intelligence collection under Chinese law.
“So are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” questioned the man.
The judges also asked whether TikTok’s free expression rights are in question because the statute targets its foreign owner, who might not be able to assert First Amendment rights.
“TikTok is the only platform with First Amendment rights, and it does have those rights. How exactly are those First Amendment rights being used in this situation, I suppose? Elena Kagan, the judge, inquired.
Regardless of how long it takes or how possible it is to divest, Justice Sonia Sotomayor questioned whether TikTok’s First Amendment rights are violated by the compelled divestiture because the company can continue to utilize an algorithm.
“Look, if the government is doing something specifically for the purpose of changing the content that people see, that has to be subject to strict scrutiny,” Sotomayor replied. That was your stronger case, or at least the one that most intrigued me. In contrast to ByteDance, I don’t think that will have an impact on TikTok.
Francisco responded that TikTok is essentially unprecedented when asked to cite examples of business structure regulations being seen as direct regulations of express conduct. According to him, the regulation is not justified by the threat TikTok poses to national security.
“I’m not aware of any time in American history where the Congress has tried to shut down a major speech platform,” Francisco stated. Francisco stated that “it will go dark” on January 19 if TikTok loses the case. An interim injunction, he said, might “buy everybody a little breathing space.”
According to Jeffrey Fisher, the lawyer for TikTok content creator Brian Firebaugh, the statute obstructed his client’s First Amendment expression rights because creators are entitled to collaborate with the publisher of their choosing.
According to Chief Justice John Roberts, “Congress doesn’t care about what’s on TikTok,” “The cure demonstrates that they don’t give a damn about the expression. They’re not advocating for TikTok to shut down. China must relinquish its influence over TikTok, they believe.
According to Fisher, his client and other “ordinary American citizens” may create sizable platforms and make their voices known thanks to TikTok’s distinctive algorithmic architecture. According to Fisher, other social networking sites have not been able to replicate the atmosphere that TikTok provides, which would disadvantage TikTok creators in the event that the app stopped working and they lost their biggest followings.
The political history of the case is complex and tense.
Despite the fact that the ban was signed into law by President Joe Biden and passed by Congress with bipartisan support, Trump has changed his mind on the matter. He promised to outlaw TikTok during his first term in office, but he later declared his support for the app during the election campaign, pointing to his own popularity on the app. He recently met the CEO of the company.
The statute contains a clause that permits the president to provide a one-time extension of ninety days in the event that he finds a way to divest and that there has been substantial progress in carrying it out. No indications have been made to the public that such a sale is likely. A group led by billionaire Frank McCourt said on Thursday that it was making an offer.
TikTok, eight individual users, and the conservative TikTok group Based Politics Inc. all filed separate challenges, claiming the law infringes on their right to free speech.
Despite concluding that the law did implicate the First Amendment and required a thorough analysis, the U.S. Court of Appeals for the District of Columbia Circuit affirmed it.
The three-judge panel came to the conclusion that the law was carefully tailored to achieve a compelling government interest.
The government’s national security arguments, such as worries that the Chinese government would obtain user data on Americans and perhaps alter app content, were upheld by the appeals court.
In legal documents submitted to the Supreme legal, TikTok’s attorneys contended that although Congress has a legitimate interest in preserving national security, stifling American speech is not one of the options available since other Americans might be convinced. They stated that the government made no effort to address its national security issues in a way that would not infringe upon the right to free speech.
A diverse range of public interest organizations, including the libertarian Cato Institute and the left-leaning American Civil Liberties Union, have entered the battle on TikTok’s behalf in the court on the basis of free speech.
Just days before her departure, Solicitor General Elizabeth Prelogar is tasked with upholding the law.
She claimed in court documents that the law does not even violate the First Amendment and that the proposed ban would address the significant national security risks posed by the Chinese government’s control over TikTok, a platform that collects private information about tens of millions of Americans and would be a powerful instrument for a foreign adversary to use for covert influence operations.
She said that rather than restricting speech, the legislation keeps an enemy from another country from doing so.
“The restrictions are not focused on suppressing specific speech based on what is being said or who is saying it,” Prelogar said, so even if there are free speech problems, they are small.
“Americans are on this platform thinking that they are speaking to one another, and this recommendation engine that is apparently so valuable is organically directing their speech to each other,” Prelogar said the court in a Friday statement. Furthermore, the PRC, a foreign adversarial country, is secretly taking advantage of a system of vulnerabilities.
In her response, Justice Elena Kagan said that “everybody now knows that China is behind it” and contrasted TikTok’s algorithm with other social media sites like X, which have made more disclosures.
Prelogar told the justices that ByteDance might be forced to provide China’s authorities access to the data that TikTok collects about its users and uses to track the whereabouts of Forbes journalists.
In 2018, Meta admitted to granting Chinese developers access to user data.
Montana and 21 other states, together with retired national security officials, support the federal government.
Since its 2018 introduction in the US, TikTok has grown in popularity, with 170 million users as of right now.
Users receive streams of short-form video content from the algorithm, which adapts to their interests.