TikTok’s day in court

The U.S. Supreme Court will hear oral arguments today to determine the future of the popular social media app TikTok. The question in TikTok v. Garland is whether Congress can require ByteDance, a company based in China that is subject to the control of the Chinese government, to sell off TikTok.

In The Protecting Americans From Foreign Adversary Controlled Applications Act, Congress forbids platforms like Google and Apple from hosting or maintaining apps controlled by a foreign adversary and designates China as a foreign adversary. This means that—unless ByteDance sells the app—the clock for TikTok runs out on Jan. 19. TikTok argues that the Supreme Court should halt the divestiture requirement because it violates its First Amendment free speech rights.

The TikTok app is used by approximately 170 million Americans every day and comes with the usual conglomeration of social media ills. TikTok estimates that its algorithm is so effective that it takes only 260 videos—or about 35 minutes—for an individual to develop a TikTok “habit,” a habit that may lead to addiction. And internal documents show that TikTok is designed to keep young people on the app. The company’s own research acknowledges that “compulsive usage correlates with a slew of negative mental health effects.”

Unlike other social media apps, however, TikTok also presents grave national security concerns. It collects vast amounts of data, including a user’s age, phone number, contacts, location, and browsing and search histories. TikTok also collects the content of private messages sent and received through the app as well as the content of videos watched. Chinese law authorizes its government to access and control all of this private data.

In August 2020, President Donald Trump issued an executive order effectively banning TikTok. He concluded that the app posed a threat to “the national security, foreign policy, and economy of the United States.” The president was concerned that TikTok would allow the Chinese government to track Americans’ locations, build blackmail dossiers, and conduct espionage. After a federal court found the order to exceed the president’s authority, Congress enacted and President Joe Biden signed the act requiring ByteDance to sell off TikTok within 270 days.

TikTok then filed its suit arguing its First Amendment rights were violated. The U.S. Court of Appeals for the District of Columbia Circuit disagreed, and TikTok asked the Supreme Court to use its emergency powers to stop the 270-day countdown. Instead, the court decided to review the case on an expedited basis. The Supreme Court is expected to issue some sort of decision before the Jan. 19 deadline.

There are three ways for TikTok to lose the case. First, the Supreme Court could hold that the statute’s prohibition on foreign adversary ownership does not implicate the First Amendment at all. The law does not regulate speech. And ByteDance is a foreign company that has no right to conduct business in the United States. As for TikTok’s users, the statute doesn’t target their speech, and they can use other social media platforms—ones that are not controlled by foreign adversaries. And the law permits TikTok to continue without change so long as the Chinese-controlled ByteDance sells the app to someone else. Indeed, Congress has a long tradition of regulating who controls media companies.

Second, the Supreme Court could determine that the statute is focused on conduct (ownership) and only incidentally burdens TikTok’s speech. This means that something called intermediate scrutiny would apply. Under this standard, the law must advance an important government interest and burden no more speech than necessary. Here, the government’s national security interests are undoubtedly important, and the statute only prohibits foreign adversary ownership. If intermediate scrutiny applies, TikTok will likely lose in its bid for Supreme Court intervention.

Third, the Supreme Court could determine that strict scrutiny applies because Congress justified the law in part based on speech-related concerns, namely its concern that the Chinese government might covertly manipulate platform content. Strict scrutiny is typically the death knell for congressional legislation because it requires both a compelling government interest and that its chosen method is the most narrowly tailored way to serve that compelling interest.

Yet the D.C. Circuit upheld the statute even under the strict scrutiny standard. Each of the government’s two national security justifications for the law—preventing China from collecting substantial quantities of U.S. users’ data and covertly manipulating content on the platform—are likely compelling interests. The question is whether the statute is narrowly tailored to serve those interests.

TikTok alleges there are better ways of safeguarding national security—like third-party monitoring. Yet monitoring is unlikely to stop espionage by foreign adversaries, and Supreme Court justices are typically wary of second-guessing the political branches’ national security assessments in the foreign policy context.

In short, the TikTok case presents novel and intricate questions involving the First Amendment and when various levels of scrutiny apply. Yet the most straightforward way for the Supreme Court to decide the case is to conclude that Congress may bar ownership by a foreign adversary. The bottom line is that TikTok may continue operating in the same manner if ByteDance divests it, freeing the platform from Chinese government control. That regulation of foreign ownership should not be held to violate the First Amendment.