Four Key Insights from the Supreme Court’s TikTok Showdown

On Friday, the Supreme Court deliberated on legislation that might decide the future of TikTok, a tremendously popular social media application boasting approximately 170 million users.

The legislation was passed by Congress due to worries that the app, whose parent company is Chinese, is vulnerable to the influence of the Chinese government, presenting a national security threat. This law would essentially prevent TikTok from continuing operations in the United States unless its parent company, ByteDance, divests by January 19.

Here are some important insights:

The court seemed inclined to uphold the legislation.

While justices from both sides of the ideological divide posed challenging inquiries to both parties, the general atmosphere and momentum indicated increased skepticism towards the arguments from TikTok’s and its users’ attorneys that the First Amendment prevented Congress from passing the law.

The inquiries began with two conservative justices, Justice Clarence Thomas and Chief Justice John G. Roberts Jr., proposing that it is not TikTok, an American entity, but its Chinese parent company, ByteDance, that is directly impacted by the law.

Justice Brett M. Kavanaugh, another conservative, emphasized the potential danger that the Chinese government could leverage data TikTok is collecting from millions of American teenagers and young adults to ultimately “develop spies, manipulate individuals, extort individuals” as they mature and join national security institutions or military service.

Justice Elena Kagan, a liberal, inquired why TikTok could not simply create or acquire a different algorithm in lieu of relying on ByteDance’s.

Meanwhile, Justice Ketanji Brown Jackson, another liberal, expressed her belief that the law pertained more to association than to speech. She proposed that prohibiting TikTok from associating with a Chinese corporation was similar to prohibiting Americans from connecting with foreign terrorist organizations for purposes of national security. (The Supreme Court has deemed that constitutional.)

However, multiple justices expressed skepticism regarding a significant portion of the government’s rationale for the law: the threat that China might “covertly” compel TikTok to manipulate the material shown to Americans or gather user information to further its geopolitical objectives.

Both Justice Kagan and Justice Neil M. Gorsuch, a conservative, highlighted that it is widely recognized that China is behind TikTok. They seemed intrigued by the possibility of whether the government’s objective to prevent “covert” exploitation of the platform by a foreign adversary could be accomplished in a less burdensome way, such as by adding a label warning users of that risk.

Attorneys for TikTok and its users contended that the law violates constitutional rights.

Two attorneys argued that the legislation breaches the First Amendment: Noel Francisco, representing both TikTok and ByteDance, along with Jeffrey Fisher, who represents TikTok users. They both maintained that fears regarding possible manipulation by the Chinese government of the information available to American users on the platform were inadequate to warrant the law.

Francisco asserted that in a free nation, the government “has no legitimate interest in inhibiting foreign propaganda” and cannot constitutionally attempt to shield Americans from being “influenced by Chinese misinformation.” This amounts to targeting the content of speech, which the First Amendment prohibits, he stated.

Fisher commented that apprehensions that China might utilize its dominance over the platform to promote messages undermining democracy or advocating pro-China and anti-American sentiments were a feebler justification for hindering free speech compared to issues related to foreign terrorism.

“The government simply cannot declare ‘national security’ and assume the case is concluded,” said Fisher, further emphasizing, “It’s insufficient to merely proclaim ‘national security’ — you must articulate ‘what is the actual harm?’”

The Biden administration upheld Congress’s authority to enact the legislation.

The solicitor general, Elizabeth B. Prelogar, maintained that Congress possessed the legal power to enact the statute and that it did not infringe on the First Amendment. She noted that it’s crucial to acknowledge that the law does not restrict speech on TikTok once the platform is liberated from foreign influence.

“All of the identical speech currently occurring on TikTok could take place after divestiture,” she stated. “The legislation does not regulate that whatsoever. Thus, it’s not claiming you cannot have pro-China speech, you cannot have anti-American speech. It’s not controlling the algorithm.”

She further explained: “TikTok, if permitted, could utilize precisely the same algorithm to present the identical content by the same users. All the act aims to do is to surgically eliminate the capability of a foreign adversary nation to access our data and to exert control over the platform.”

The court seems unlikely to await Trump.

President-elect Donald J. Trump has requested the Supreme Court to issue a stay that would postpone the law from being implemented until after he assumes office on January 20.

Trump previously shared the sentiment that Chinese control of TikTok represented an unacceptable national security threat but changed his stance around the time he conferred with a billionaire Republican donor who has an investment in its parent company.

If the court decides to affirm the law, TikTok would essentially be prohibited in the United States by January 19, according to Francisco. He reiterated a plea for the court to temporarily suspend the law’s enforcement to extend that deadline, stating it would “merely provide everyone a little breathing room.” It could be a “different environment” for TikTok post-January 20, he added.

Yet, the justices showed little interest in that proposition, implying that they did not treat it seriously. Trump’s request to have the court delay the matter beyond the conclusion of President Biden’s term so he could manage it — signed by his nominee for the next solicitor general, D. John Sauer — was filled with praise for Trump but lacked substantive arguments.