A majority of the U.S. Supreme Court seemed poised to uphold the controversial TikTok ban, citing national security concerns related to its ties to China. During a two-hour oral argument session, several justices raised pointed questions for TikTok’s lawyers and a group of its content creators, signaling skepticism about the company’s position.
The case revolves around a law passed by Congress in April, which could force TikTok’s Chinese parent company, ByteDance, to sell the app or face restrictions in the United States. The law aims to address concerns over the app’s potential influence by China, given its vast American user base of 170 million. The law is set to take effect on January 19 unless the Supreme Court intervenes. A decision on whether to block the ban could come soon, potentially before the justices address broader issues like First Amendment rights.
Both former President Trump and President Biden have previously expressed concerns over TikTok’s data collection practices and possible content manipulation, although TikTok has dismissed the claims as speculative and denied any direct Chinese government involvement in content control.
Here are the key takeaways from the oral arguments:
Skepticism Over First Amendment Claims
Several justices, across ideological lines, seemed doubtful that the TikTok ban directly implicates First Amendment rights. For TikTok to succeed in its challenge, it would need to prove the First Amendment applies and that the law violates those protections.
Chief Justice John Roberts noted that Congress seemed more focused on regulating a foreign adversary’s access to American users’ data than protecting free speech. He emphasized that Congress’s primary concern was not expression but security risks posed by Chinese access to personal information.
Justice Elena Kagan also questioned whether the First Amendment applied in this context, noting that the law targets a foreign company, which does not hold the same constitutional rights as a U.S.-based entity.
National Security Concerns Take Center Stage
The government’s case hinged heavily on national security, with Solicitor General Elizabeth Prelogar arguing that TikTok’s vast data collection posed a serious risk. Prelogar highlighted how China could use the information to influence or manipulate U.S. citizens, particularly younger Americans, and even potentially recruit individuals working in sensitive government roles.
This argument resonated with several justices, including Roberts and Justice Brett Kavanaugh. Kavanaugh, in particular, expressed concern about the potential long-term consequences of China accessing data from millions of Americans, including future government employees.
Gorsuch and Kagan Raise Concerns About Free Speech
Conservative Justice Neil Gorsuch was notably wary of a ban, suggesting that the proper response to problematic content could be counter-speech, not an outright ban. He raised concerns about the potential impact on free expression, noting that TikTok might accept measures like disclaimers warning users about potential foreign influence.
Justice Kagan also voiced concerns about the broader implications of government action on speech, referencing historical instances of foreign propaganda in the U.S. and questioning whether a similar approach would have been justified during the Cold War.
The January 19 Deadline
Unless the Court intervenes, TikTok could face severe restrictions starting on January 19. The law mandates that the app be removed from U.S. app stores, and service providers could face penalties for continuing to offer TikTok services. While existing users could still access the app, it would become increasingly difficult to use as updates are blocked.
TikTok’s attorney, Noel Francisco, warned that this could lead to the app “going dark,” with major consequences for users and the company. However, he suggested that there could still be changes in the political landscape post-January 19, especially with potential negotiations under the incoming president, Donald Trump.
Trump’s Influence on the Case
Despite not being in office, Trump’s recent filing urging the Court to temporarily pause the ban has added an extra layer of complexity to the case. Conservative Justice Samuel Alito asked whether the Court had the authority to grant an administrative stay, effectively delaying the implementation of the law to allow for negotiations. Prelogar confirmed that the Court had the power to pause the law but emphasized that the case had already been fully briefed.
Justice Sonia Sotomayor warned that any suggestion of non-enforcement could lead companies to ignore the law, which would have serious legal consequences, regardless of the president-elect’s stance.
Conclusion
The Supreme Court’s deliberations on TikTok’s future highlight the tension between national security concerns and free speech protections. With the January 19 deadline fast approaching, the Court’s decision will have significant implications for both the app’s operations in the U.S. and the broader debate about foreign influence in American digital spaces.
