Supreme Court considers TikTok’s fate

A chilly, wintry wind blew outside the Supreme Court Friday morning, as TikTok attorney Noel Francisco, who served as U.S. solicitor general during the first Trump administration, faced stiff questioning from justices inside the court.

TikTok sued the Biden administration over a law that a bipartisan majority in Congress passed last year. President Joe Biden signed the bill into law in April. The Protecting Americans from Foreign Adversary Controlled Applications Act requires Chinese-owned ByteDance to divest itself of the popular social media app or shut down its U.S. operation by Jan. 19.

The Biden administration argues that the case is not about the First Amendment but about foreign ownership and national security. The legislation aims to prevent a hostile foreign government from mining U.S. user data and using it for nefarious purposes, it says.

But TikTok and a host of amici—groups filing friend-of-the-court briefs—argue that the law is an unconstitutional attempt to control speech on the platform. Besides, they say, if data privacy motivated the act’s drafters, there are other, less draconian ways to address that concern.

On Dec. 6, a unanimous panel of the District of Columbia Circuit Court of Appeals upheld the law based on the government’s compelling national security concerns, noting that the law was content-neutral and that content on TikTok could remain unchanged after divestiture. “People in the United States would remain free to read and share as much People’s Republic of China propaganda (or any other content) as they desire on TikTok,” suggested U.S. Senior Circuit Judge Douglas Ginsburg.

Days later, the judges denied a TikTok request to put a hold on the law during the appeal process.

TikTok lawyers then took their request to the Supreme Court on Dec. 16. But rather than grant a stay, the court took the unusual step of expediting the appeal—resulting in a flurry of holiday filings and likely truncated vacation plans for the lawyers involved.

This morning, Francisco, TikTok’s attorney, cast the case as an infringement of the company’s free speech. Justices, both liberal and conservative, pushed back against his argument that the case concerns objectionable content and not national security.

“Exactly what is TikTok’s speech here?” asked Justice Clarence Thomas, adding, “So why [is] a restriction on ByteDance, which is not a citizen [and] is not located in the U.S., a restriction on TikTok?”

Chief Justice John Roberts piggybacked on Thomas’ concerns, asking, “So are we supposed to ignore the fact that the ultimate parent [company] is, in fact, subject to doing intelligence work for the Chinese government?”

But it wasn’t just conservative justices who questioned TikTok’s reasoning. “What’s the problem here?” asked Justice Elena Kagan. “ByteDance is a foreign company,” she said, implying that it had no First Amendment rights.

Justice Ketanji Brown Jackson carried it a step further, suggesting the case had more to do with the right of association than with free speech. “TikTok can continue to operate on its own algorithm, on its own terms, as long as it’s not associated with ByteDance,” she said.

Next up, Stanford Law professor Jeffrey Fisher argued on behalf of a group of TikTok users. A slightly different set of questions ensued that reflected lawmakers’ concerns with both covert content manipulation by the Chinese government and data privacy.

“I do grant that data security in the way Justice Kavanaugh spelled it out is compelling,” Fisher told the justices. “But that’s not the question. You just don’t ask … ‘Was Congress worried about data security or could it reasonably be worried about data security?’ You say, ‘Can this act, the act before you, be sustained on data security grounds?’ And our answer to that has to be ‘no.’”

In her defense of the law, U.S. Solicitor General Elizabeth Prelogar called Chinese ownership of TikTok a “grave threat to national security.” She added that, “for years, the Chinese government has sought to build detailed profiles about Americans, where we live and work, who our friends and coworkers are, what our interests are, and what our vices are.”

Justice Neil Gorsuch asked her why the government should treat TikTok differently from other platforms, when all of them covertly manipulate what appears on their sites. “Isn’t this a paternalistic view?” he asked, questioning governmental restrictions. “I mean, don’t we normally assume that the best remedy for problematic speech is counter-speech?”

Prelogar said this was different in that it involved a foreign adversary. And, she said, “counterspeech is tough,” in that users don’t realize how they are being manipulated and so cannot negate the effects of the foreign adversary.

Given the expedited schedule set by the court, a ruling is expected within the next week. If the court chooses to uphold the law, it is unclear if or how the incoming Trump administration will enforce it.

Attorneys for the president-elect filed a friend-of-the court brief on Dec. 27 that asked the court to temporarily stay the effect of the law. “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government,” they argued.

But Prelogar told the court in the government’s reply brief filed on Jan. 3 that Trump’s request was a nonstarter. She noted that the suggestion was really just a request for injunctive relief, which would require TikTok to show a likelihood of success on the merits—something it could not do. She drilled down on that Friday morning but left open the possibility that the court may have the authority to issue an administrative stay—thereby allowing the new administration an opportunity to remove a thorny case from its docket.

If TikTok and Bytedance have free speech rights and the law is aimed at objectionable content, then the highest level of scrutiny would apply and only the most compelling reasons would justify infringing on those rights.

But if, as the government says, the law is simply about ownership by a hostile foreign government, then the Supreme Court would almost certainly uphold it if it has any rational basis.

In its friend-of-the-court brief, the Foundation for Defense of Democracies argues that the national security concerns are grave.

“Questions about Tibetan independence were 40 times more likely on non-TikTok applications than on TikTok,” said Rear Admiral (Ret.) Mark Montgomery, senior director of FDD’s Center on Cyber and Technology Innovation during a call with reporters Wednesday. “Questions about Taiwan independence were 16 times more likely. These are not coincidences, they’re not anomalies. They’re the impact of someone directly driving the device’s algorithm to give an output that is biased towards Chinese national security druthers.”

Montgomery said the Chinese government can manipulate the algorithm to prioritize Chinese national security interests in the social media feeds of the millions of TikTok users in America.

The Foundation for Individual Rights and Expression, which also filed a friend-of-the-court brief, said the national security argument is a red herring. Until that argument is proven on the record, it isn’t compelling enough to overcome the constitutional interest, or it should be addressed by more narrowly tailored means.

“The government advanced some really breathtakingly broad and dangerous arguments here … urging the court not to look behind the curtain as to why the government is doing what it’s doing and what it’s worried about, ” FIRE’s Ari Cohn told me in an interview after the arguments.

Cohn, who is lead counsel for tech policy for the free speech organization, said that the government is really worried about the mix of content on the app, which triggers a very high level of First Amendment scrutiny.

“There was very little discussion about the complete lack of evidence of an actual existing problem and how speculative the government’s concerns were,” said Cohn.

Given the confusion, he agreed that the court may choose to issue a temporary stay of the law, punting the case to the incoming Trump administration to have a go at resolving its issues.

One moment of levity in the lengthy arguments came from Chief Justice John Roberts, who asked if one of the concerns is that the Chinese government might try to get Americans to argue with each other. If so, “they are winning,” he joked to courtroom laughter.