WASHINGTON — The Supreme Court debated a law Friday that might determine the fate of TikTok, a hugely popular social media platform with about 170 million users.
Congress passed the law out of concern that the app, whose owner relies in China, was subject to the influence of the Chinese government and posed a national risk. The measure would effectively ban TikTok from operating within the United States unless its owner ByteDance sells it by January 19.
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Here are some key takeaways:
It appeared the court would uphold the law.
While the justices, from across the ideological spectrum, asked tough questions of each side, the general tone and thrust appeared to indicate greater skepticism of the arguments made by lawyers for TikTok and its users that the First Amendment barred Congress from passing the law.
The questioning began with two conservative members of the court, Justice Clarence Thomas and Chief Justice John Roberts, mentioning that it was not TikTok, a US company, but its Chinese parent company ByteDance that was directly affected by the law.
Another conservative, Justice Brett Kavanaugh, highlighted the danger that the Chinese government could use the data TikTok collects on tens of tens of millions of American teenagers and 20-somethings to eventually “develop spies, betray people, blackmail people.” as they get older and go to work for national security agencies or the military.
Justice Elena Kagan, a liberal, asked why TikTok couldn't simply create or purchase a unique algorithm as an alternative of using ByteDance's.
And one other liberal, Justice Ketanji Brown Jackson, said she believes the law is less about speech and more about association. She suggested that banning TikTok from associating with a Chinese company was like banning Americans from associating with foreign terrorist groups on national security grounds. (The Supreme Court has upheld this as constitutional.)
Still, several justices expressed skepticism about much of the federal government's rationale for the law: the danger that China could “secretly” direct TikTok to control the content shown to Americans or collect user data to attain its geopolitical goals.
Both Kagan and conservative Justice Neil Gorsuch emphasized that everybody now knows that China is behind TikTok. They seemed thinking about whether the federal government's interest in stopping “covert” exploitation of the platform by a foreign adversary might be achieved in a less harsh way, similar to by placing a label warning users of this risk.
Lawyers for TikTok and its users argued that the law was unconstitutional.
Two lawyers argued that the law violates the First Amendment: Noel Francisco, who represents TikTok and ByteDance, and Jeffrey Fisher, who represents TikTok users. Both said concerns about possible manipulation by the Chinese government of the data American users see on the platform weren’t enough to justify the law.
Francisco claimed that the federal government of a free country “has no legitimate interest in preventing foreign propaganda” and can’t constitutionally try to stop Americans from “being persuaded by Chinese misinformation.” That targets the content of speech, which the First Amendment doesn't allow, he said.
Fisher claimed that fears that China could use its control of the platform to advertise posts that sow doubts about democracy or promote pro-China and anti-American views were a weaker justification for interfering with free speech than concerns about of foreign terrorism.
“The government just can't get around to saying 'national security' and the case is closed,” Fisher said, adding: “It's not enough to say 'national security'; You have to say, 'What's the real harm?'”
The Biden administration defended Congress' right to enact the law.
Attorney General Elizabeth Prelogar argued that Congress had the lawful authority to enact the law and that it didn’t violate the First Amendment. She said it was essential to acknowledge that the law would fully allow expression on TikTok once the platform was free of foreign control.
“The same speech that takes place on TikTok could also take place after the divestiture,” she said. “The law doesn’t regulate this at all. So that doesn't mean that you can't make a pro-China speech, but that you can't make an anti-American speech. It doesn’t regulate the algorithm.”
She added: “If TikTok were able to do this, it could use the exact same algorithm to show the same content to the same users.” The act is solely attempting to surgically remove the flexibility of a foreign enemy nation to acquire our data and exercise control over the platform.”
The court is unlikely to attend for Trump.
President-elect Donald Trump has asked the Supreme Court to issue a preliminary injunction delaying the law's effective date until after he takes office on January 20.
Trump once shared the view that Chinese control of TikTok posed an unacceptable risk to national security, but modified course when he met with a billionaire Republican donor who had a stake within the parent company.
If the court upholds the law, TikTok could be effectively banned within the United States on January 19, Francisco said. He reiterated calls for the court to temporarily suspend the law's entry into force to beat back that deadline, saying it will “just give everyone a little breathing room.” It might be a “different world” for TikTok after Jan. 20, he added.
However, the judges paid little attention to this concept, suggesting that they didn’t take it seriously. Trump's transient asking the court to contemplate the matter beyond the tip of President Joe Biden's term so he could address it – signed by his successor as attorney general, D. John Sauer – contained much rhetoric during which he praised Trump, but little substance.
This article originally appeared in The New York Times.
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