Physical Address
304 North Cardinal St.
Dorchester Center, MA 02124
The Supreme Court on Friday heard oral arguments in the case involving the future of tiktok in the United States, and a law that could effectively ban the popular app as soon as next week.
The Law Protecting Solicitations Controlled by Foreign Adversaries goals TikTok and will impose tough civil penalties on app “entities” that provide the service after the January 19 deadline. Among several issues the justices considered was whether the law violates the Constitution’s free speech protections.
During the more than two-hour argument, the judges repeatedly questioned TikTok’s lead lawyer about the social media platform’s ties to the People’s Republic of China. And they generally seemed unconvinced by TikTok’s main argument, that the law violates the free speech rights of its millions of individual users in the United States.
Still, doubts remain about the president-elect. donald trumpTrump’s willingness to enforce the law once he takes office, just one day after it goes into effect. If Trump decides not to enforce the violations, third-party service providers like Apple and Google They will face a dilemma: whether to follow the law to the letter or rely on the new administration’s assurances that they can effectively ignore it.
Gautam Hans, a law professor at Cornell University, said in a statement that “the consensus that the Court will allow the ban to take effect appears correct.”
“What remains unfortunate is the credulity with which many of the judges treated this law, which clearly implicates free speech rights for unspecified national security reasons,” Hans said.
The TikTok argument
Noel Francisco, US attorney general during President-elect Donald Trump’s first term, opened the hearing as TikTok’s legal representative. He echoed Trump’s desire to court to stop effective banto give Trump time to find a political resolution to national security concerns about TikTok.
The judges peppered Francisco with questions about TikTok’s ties to China-based ByteDance, which owns the social media service, and interrogated TikTok’s first amendment argument against the law.
Much of the court’s line of inquiry focused on TikTok’s ownership structure. When Judge Samuel Alito asked Francisco if he would make the same argument if TikTok were owned directly by the Chinese government, TikTok’s lawyer said no.
But Francis also insisted that Beijing does not force TikTok to make content decisions.
“We absolutely resist any type of content manipulation by China,” Francisco said. Court observers noted his careful use of the word “resist,” rather than, for example, “reject.”
O’Melveny & Myers special counsel Jeffrey Fisher argued on behalf of TikTok content creators who are defying the law.
In the interest of national security, “Congress can prohibit Americans from… associating with terrorist organizations,” Fisher said. But “the government just can’t come in and say ‘national security’ and the case is over.”
“You have to dig deeper into what the national security assertion is,” Fisher said.
The case of the government
Much of the argument in support of the TikTok divestment bill so far centers on the claim that TikTok does indeed pose a national security threat. This was the core of US Attorney General Elizabeth Prelogar’s argument.
Americans who use TikTok may believe that “they are talking to each other,” Prelogar said. But in reality, “the People’s Republic of China, a foreign adversary nation, is exploiting a vulnerability in the system.”
The judges pressed Prelogar on how TikTok differs from other foreign-owned outlets, such as Politico and Oxford University Press.
“China is a foreign adversary nation that seeks every opportunity it can to weaken the United States,” he said. “If he has control (over TikTok), it is difficult to predict exactly how he will use it as a tool to harm our interests.”
“But we know he’ll try,” Prelogar said.
“What we are trying to avoid is not the specific issue, the specific points of view, but the technical ability of a foreign adversary nation to use a communications channel,” Prelogar said.
As to whether the incoming Trump administration could extend the deadline before the law is enacted, Prelogar said the U.S. government has not yet taken a position on the matter.
“We haven’t looked at it, in part because it’s just not presented here,” Prelogar said.
Trump will be inaugurated on January 20 and the deadline for divestment is January 19.
As to whether President-elect Trump can choose not to enforce the law, Prelogar said that “raises a complicated question.”
It’s unclear when the court will hand down a decision, and if China’s ByteDance continues to refuse to sell TikTok to an American company, it faces an outright ban nationwide.
What are the possible impacts on users?
TikTok’s roughly 115 million monthly active users in the U.S. could face a variety of scenarios depending on when the Supreme Court makes a decision.
If no news is received before the law goes into effect on January 19 and the ban is passed, users may still be able to post or interact with the app if they have already downloaded it. However, those users likely won’t be able to update or redownload the app after that date, several legal experts said.
Thousands of short video creators who generate income from TikTok through advertising, paid partnerships, products and more will likely need to transition their businesses to other platforms, such as YouTube or Instagram.
“Shutting down TikTok, even for a single day, would be a big problem, not just for the people who create content on TikTok, but for everyone who shares or views content,” said George Wang, an attorney at the Knight First Amendment Institute. who helped write the institute’s amicus curiae briefs on the case.
“It sets a really dangerous precedent for how we regulate online speech,” Wang said.
What comes next?
It is unclear when the Supreme Court will issue its ruling, but the expedited hearing of the case suggests the court could issue a quick ruling.
The case will have “huge implications” because TikTok’s user base in the United States is so large, said Erwin Chemerinsky, dean of Berkeley Law.
“It’s unprecedented for the government to ban speech platforms, especially one that so many people use,” Chemerinsky said. “Ultimately, this is a tension between free speech issues, on the one hand, and national security claims, on the other.”
“There are valid reasons to have concerns about privacy and data collection,” said Cornell’s Hans.
“But this law specifically targets one platform in a way that should make us all concerned about whether future government actions could target other platforms of expression.”
LOOK: It Looks Like TikTok Might Really Shut Down, Says Jim Cramer
