On Friday, the Supreme Court seemed inclined to uphold a law that could effectively ban TikTok, the popular app used in half the country.
Although several justices expressed concern that the law was in tension with the First Amendment, a majority seemed satisfied that it did not target TikTok's speech rights but rather its ownership, which the government says is controlled by China. The law requires the app's parent company, ByteDance, to sell TikTok by January 19. If you don't, the law requires that the app be closed.
The government offered two rationales for the law: combating China's covert disinformation and prohibiting it from collecting private information about Americans. The court was divided on the first justification. But several judges appeared concerned about the possibility that China could use data extracted from the app for espionage or blackmail.
“Congress and the president were concerned,” Justice Brett M. Kavanaugh said, “that China was accessing information about millions of Americans, tens of millions of Americans, including teenagers and people in their twenties.”
That data, he added, could be used “over time to develop spies, to convert people, to blackmail people who within a generation will work in the FBI, the CIA or the State Department.”
Noel J. Francisco, a lawyer for TikTok, said he does not question those risks. But he said the government could address them without effectively ordering the app to, as he put it, “go dark.”
Chief Justice John G. Roberts Jr. did not seem persuaded.
“Are we supposed to ignore the fact that the ultimate father is, in fact, subject to doing intelligence work for the Chinese government?” Chief Justice Roberts asked.
The court has exceptionally fast-tracked the case and is likely to rule late next week. Their decision will be one of the most consequential of the digital age, as TikTok has become a cultural phenomenon powered by a sophisticated algorithm that provides entertainment and information about nearly every facet of American life.
The Supreme Court has repeatedly taken up cases on the application of free speech principles to giant tech platforms, although it has stopped short of issuing definitive rulings. He has also struggled with the application of the First Amendment to foreign speakers, ruling that they generally lack constitutional protection, at least for speeches given abroad.
Justice Elena Kagan recognized that TikTok, which is an American company, has First Amendment rights. But he asked, “How are those First Amendment rights really involved here?”
If ByteDance divests from TikTok, Judge Kagan said, the American company will still be free to say whatever it wants.
Jeffrey L. Fisher, an attorney for the app's users, said his clients should not be required to migrate to other platforms, using a newspaper analogy.
“It's not enough to tell a writer, well, you can't publish an op-ed in The Wall Street Journal because you can publish it in The New York Times,” he said, adding that “TikTok has a different editorial and publishing perspective.”
The law, signed into law in April with broad bipartisan support, said urgent action was needed because ByteDance was effectively controlled by the Chinese government, which could use the app to collect sensitive information about Americans and spread covert disinformation.
Claiming that the law violates both its First Amendment rights and those of its 170 million American users, TikTok has urged the court to strike down the law. He has repeatedly argued that a sale is impossible, in part because China would ban the export of ByteDance's algorithm.
TikTok has also maintained that there is no public evidence that the US government's concerns about Chinese interference have come true in the United States. But the government has claimed in court papers that the app acceded to Beijing's demands to censor content outside China.
Several justices appeared to be seeking narrow ground to uphold the law, leaning toward the government's interest in protecting Americans' data.
Elizabeth B. Prelogar, attorney general of the United States, defended the law in that area, saying that China “has a voracious appetite to get its hands on as much information as possible about Americans, and that creates a potent weapon here.”
Judge Samuel A. Alito Jr. expressed concern about what he said was “an enormously powerful popular application” that is “gathering an arsenal of information on American citizens.”
The court was more divided on the question of whether possible disinformation or covert propaganda justified the ban.
“Look,” Francisco said, “everyone manipulates the content. “There are a lot of people who think that CNN, Fox News, The Wall Street Journal and The New York Times are manipulating their content.”
Outside the courthouse, some TikTok creators streamed live audio of the arguments to their followers, answering questions, expressing fear of the impending ban and holding up small hand warmers in 20-degree weather.
Andrea Celeste Olde, who traveled from Bakersfield, California, with her husband to speak out against the law, said the platform helped her start a new career as a social media monetization coach after spending 10 years at home raising three children. “TikTok is where I created my community,” he said. “I have made friends. I have business partners. “That’s how we connect.”
Other avid users of the app said it provided them with unique business opportunities. They rarely have to pay to gain enough followers to drive sales with eye-catching videos, unlike other platforms, said Sarah Baus, a beauty creator with nearly 800,000 followers. “TikTok has allowed me to grow my audience much faster,” he said.
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit in early December rejected a challenge to the law, ruling that it was justified by national security concerns.
“The First Amendment exists to protect freedom of speech in the United States.” Justice Douglas H. Ginsburg wrote for the majority, along with Justice Neomi Rao. “Here the government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to collect data about people in the United States.”
By concurring vote, Chief Judge Sri Srinivasan He acknowledged that under the law's ban, “many Americans may lose access to an outlet for expression, a source of community, and even a means of income.”
“Congress found it necessary to take that risk,” he wrote, “given the serious threats to national security it perceived. And because the record reflects that Congress's decision was thoughtful, consistent with long-standing regulatory practice, and devoid of an institutional goal to suppress particular messages or ideas, we are not in a position to set it aside.”
Echoing an argument made in an appeals court ruling upholding the law, Judge Kavanaugh said the law had historical analogies. “There is a long tradition of preventing foreign ownership or control of the media in the United States,” he said.
ByteDance has said that more than half of the company is owned by global institutional investors and that the Chinese government has no direct or indirect stake in TikTok or ByteDance.
The government brief acknowledged that ByteDance is incorporated in the Cayman Islands, but said it is headquartered in Beijing and operates primarily from offices in China.
The deadline set by law falls one day before President-elect Donald J. Trump's inauguration. In an unusual brief Last month, nominally in support of neither party, he asked the justices to temporarily block the law so he could address the issue once in office.
“President Trump opposes banning TikTok in the United States at this time,” the brief said, “and seeks the ability to resolve the issues at hand through political means once he takes office.”
Judge Kavanaugh asked Mr. Francisco, TikTok's lawyer, what would happen on Jan. 19 if the court ruled against the company in the meantime.
“As I understand it,” Fransisco said, “we were left in the dark.” He added that the court should temporarily block the law to “give everyone some breathing room.”
The law allows the president to extend the deadline by 90 days in limited circumstances. But that provision does not appear to apply, as it requires the president to certify to Congress that there has been significant progress toward a sale supported by “relevant binding legal agreements.”
Prelogar, the government lawyer defending the law, said any shutdown that begins Jan. 19 does not have to be permanent. That idea intrigued Justice Alito.
“So if we affirmed and TikTok was forced to cease operations on January 19,” Judge Alito said, “you would say there could be a divestiture after that point, and TikTok could continue to operate again.”
Minho Kim and Sapna Maheshwari contributed with reports.
