“Unless there’s a divestiture,” Justice Brett Kavanaugh said, finishing TikTok lawyer Noel Francisco’s sentence. Francisco agreed, and added the line that framed Friday’s Supreme Court argument: “On Jan. 19, we still have President Biden, and on Jan. 19, as I understand it, we shut down.”
After more than two hours of questions, the justices appeared likely to uphold the law that could force TikTok out of the U.S. Skepticism about the company’s challenge came from conservative and liberal members alike. Without action from the court, TikTok could be shut out of U.S. app stores as soon as Jan. 19. Congress gave it nine months to split from its China-based parent, ByteDance, or face a ban.
The government’s case
Officials have warned for years that ByteDance, headquartered in Beijing, must operate under Chinese laws. They say China could use the app to gather a vast amount of data on American users and spy on them. ByteDance, TikTok and a group of content creators say the law violates the First Amendment and asked the court to delay or overturn it.
Chief Justice John Roberts put the government’s position bluntly. “Congress is fine with the expression. They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok,” he said. He also asked whether the court should ignore that the “ultimate parent” is subject to doing intelligence work for the Chinese government.
Kavanaugh, who worked in the White House under President George W. Bush, raised the data question from another angle. Congress and the president, he said, worried China would use information on tens of millions of Americans “to develop spies, to turn people, to blackmail people.” Many users are in their teens and 20s, he noted, and may later work for the FBI, the State Department or other agencies. Francisco said there are “lots of reasons” the risk cannot justify the law. Kavanaugh called TikTok’s data collection “a huge concern for the future of the country.”
TikTok’s argument
Francisco, arguing for the platform, told the court the divest-or-shutter law targets “speech itself” and cannot satisfy any level of judicial scrutiny. “In short, this act should not stand,” he said. He asked the court, “at a minimum,” to put the law on hold temporarily.
Justice Clarence Thomas led off the questions. If the restriction falls on ByteDance, which is in Beijing, why is it a restriction on TikTok’s speech, he asked.
Francisco offered a hypothetical: imagine the Chinese government using leverage over Jeff Bezos’ international empire to make the Washington Post write favorably about China. The government, he argued, could not make Bezos shut the paper down or sell it. Justice Samuel Alito asked whether it would matter if a foreign government fully controlled the platform. Francisco answered that plenty of U.S. companies have foreign owners, Politico among them, and called TikTok a bona fide U.S. company.
Justice Neil Gorsuch asked about the algorithm that picks what users see. Francisco said TikTok, incorporated in the U.S., could choose not to use ByteDance’s algorithm, but it would be an “incredibly bad business decision.” He said the record shows ByteDance has not “done anything here in the United States” and has not removed content at China’s request elsewhere. Gorsuch replied that this “doesn’t necessarily cover covert content manipulation.”
Justice Amy Coney Barrett asked, “Am I right that the algorithm is the speech here?” Francisco called it “basically how we predict what our customers want to see,” and said TikTok and ByteDance “absolutely resist any content manipulation by China.”
Kagan and Jackson push back
Justice Elena Kagan questioned whose rights are at stake. ByteDance is a “foreign company,” she said, and the statute only requires it to divest. TikTok keeps the “ability to do what every other actor in the United States can do, which is, go find the best available algorithm.” Perhaps, she added, ByteDance will make its own algorithm more widely available.
Justice Ketanji Brown Jackson, the newest member of the court, put it this way: “It doesn’t say, ‘TikTok, you can’t speak.’” She asked whether the case is really about association with ByteDance. She also pressed Francisco on the level of review. Two judges on the D.C. Circuit applied strict scrutiny and found the government met it. The third applied intermediate scrutiny. The three-judge panel unanimously upheld the law. Francisco said content manipulation is an “impermissible” interest, and that the government could not tell CNN or Fox they were manipulating content in ways it disliked.
The creators
Jeffrey Fisher, co-director of the Supreme Court Litigation Clinic at Stanford Law, argued for the eight creators challenging the ban. “Under the First Amendment, mere ideas do not constitute a national security threat,” he said. Restricting speech because it might sow doubt about leaders or undermine democracy is “what our enemies do,” he added, and “not what we do in this country.”
President-elect Donald Trump has vowed to save the app. He takes office on Jan. 20, and could decline to enforce the law if the court lets it take effect the day before.
