On Friday, the Supreme Court debated a law that could determine the fate of TikTok, a hugely popular social media platform that has about 170 million users.
Congress enacted the law concerned that the app, whose owner is based in China, would be susceptible to Chinese government influence and pose a national risk. The move would effectively ban TikTok from operating in the United States unless its owner, ByteDance, sells it by January 19.
Here are some key takeaways:
The court seemed likely to uphold the law.
While judges across the ideological spectrum asked tough questions of both sides, the overall tone and direction seemed to suggest greater skepticism toward arguments by TikTok's lawyers and its users that the First Amendment prohibited Congress from enacting the law.
The questioning began with two conservative members of the court, Justice Clarence Thomas and Chief Justice John G. Roberts Jr., suggesting that it was not TikTok, an American company, but its Chinese parent company, ByteDance, that was directly in view. affected by the law. .
Another conservative, Justice Brett M. Kavanaugh, focused on the risk that the Chinese government could use the information TikTok is collecting on tens of millions of American teenagers and twenty-somethings to eventually “develop spies, convert people, blackmail the people” when they grow up and leave. work for national security agencies or the military.
Liberal Justice Elena Kagan asked why TikTok couldn't simply create or buy another algorithm instead of using ByteDance's.
And another liberal, Justice Ketanji Brown Jackson, said he believed the law was less about expression than about association. He suggested that preventing TikTok from partnering with a Chinese company was akin to preventing Americans from partnering with foreign terrorist groups for national security reasons. (The Supreme Court has confirmed it as constitutional).
Still, several justices were skeptical about an important part of the government's justification for the law: the risk that China could “covertly” force TikTok to manipulate content shown to Americans or collect user data to achieve its goals. geopolitical objectives.
Both Justice Kagan and Justice Neil M. Gorsuch, a conservative, emphasized that everyone now knows that China is behind TikTok. They seemed interested in whether the government's interest in preventing “covert” leverage of the platform by a foreign adversary could be achieved in a less harsh way, such as adding a label warning users of that risk.
Lawyers for TikTok and its users argued that the law is unconstitutional.
Two lawyers argued that the law violates the First Amendment: Noel Francisco, who represents both TikTok and ByteDance, and Jeffrey Fisher, who represents TikTok users. Both suggested that concerns about possible manipulation by the Chinese government of the information that American users see on the platform were insufficient to justify the law.
Francis maintained that the government of a free country “has no valid interest in preventing foreign propaganda” and cannot constitutionally attempt to prevent Americans from being “persuaded by Chinese disinformation.” This points to the content of the speech, which the First Amendment does not allow, he said.
Fisher said fears that China could use its control over the platform to promote posts that sow doubts about democracy or push pro-China and anti-American views were a weaker justification for interfering with free speech than the concerns about foreign terrorism.
“The government simply can't say 'national security' and the case is over,” Fisher said, adding: “It's not enough to say 'national security'; You have to say 'what is the real damage? '”
The Biden administration defended Congress's right to enact the law.
Attorney General Elizabeth B. Prelogar argued that Congress had legal authority to enact the statute and that it did not violate the First Amendment. He said it was important to recognize that the law leaves expression on TikTok unrestricted once the platform is free from foreign control.
“All the same discourse that is happening on TikTok could happen after the divestment,” he said. “The law does not regulate that at all. So it doesn't mean that you can't have a pro-China speech, but it means that you can't have an anti-American speech. “It is not regulating the algorithm.”
He added: “TikTok, if it could do it, could use precisely the same algorithm to show the same content to the same users. “All the law does is try to surgically eliminate the ability of a foreign adversary nation to obtain our data and be able to exert control over the platform.”
It seems unlikely that the court will wait for Trump.
President-elect Donald J. Trump has asked the Supreme Court to issue a court order delaying the law from taking effect until after he takes office on January 20.
Trump once shared the view that Chinese control of TikTok was an intolerable national security risk, but changed course when he met with a billionaire Republican donor with a stake in its parent company.
If the court upholds the law, TikTok would effectively be banned in the United States on Jan. 19, Francisco said. He reiterated a request that the court temporarily suspend the law's entry into force to delay that deadline, saying it would “just give everyone a little breathing room.” It could be a “different world” for TikTok after January 20, he added.
But the judges paid little attention to that idea, suggesting they didn't take it seriously. Trump's brief requesting that the court leave the issue beyond the end of President Biden's term so he could handle it (signed by his pick to be the next attorney general, D. John Sauer) was a long piece of rhetoric praising Trump. , but lacking in substance.
