The Supreme Court tried on Friday a law that could determine the fate of TikTok, a wildly popular social media platform that has about 170 million users.
Congress enacted the law out of concern that the app, whose owner is based in China, is susceptible to Chinese government influence and poses a national risk. The measure 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 justices across the ideological spectrum asked tough questions of both sides, the overall tone and thrust appeared to indicate greater skepticism toward arguments by TikTok’s lawyers and its users that the First Amendment barred Congress from enacting the law.
The hearing 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 affected by the law. .
Another conservative, Judge Brett M. Kavanaugh, focused on the risk that the Chinese government could use the information TikTok collects on tens of millions of American teenagers and twenty-somethings to “develop spies, convert people, blackmail people” when they grow up and they leave. to work for the national security services or the military.
Justice Elena Kagan, a liberal, asked why TikTok couldn’t just create or buy another algorithm instead of using ByteDance.
And another liberal, Justice Ketanji Brown Jackson, said she believed the law was less about speech than association. He suggested that banning TikTok from associating with a Chinese company was similar to banning Americans from associating with foreign terrorist groups on national security grounds. (The Supreme Court upheld it as constitutional.)
But several judges were wary of an important part of the government’s justification for the law: the risk that China could “covertly” force TikTok to manipulate the content shown to Americans or collect user data to achieve its geopolitical goals. .
Both Justice Kagan and Justice Neil M. Gorsuch, a conservative, pointed out that everyone now knows that China is behind TikTok. They appeared to be interested in whether the government’s interest in preventing “stealth” leverage of the platform by a foreign adversary could be achieved in a less onerous way, such as adding a label warning users of this risk.
Lawyers for TikTok and its users have 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 the Chinese government’s potential manipulation of information seen by American users on the platform were insufficient to justify the law.
Mr. Francisco argued that the government in a free country “does not have a valid interest in preventing foreign propaganda” and cannot constitutionally try to prevent Americans from being “convinced by Chinese disinformation.” This targets the content of the speech, which the First Amendment does not allow, he said.
Mr. Fisher argued that fears that China might use its control of the platform to promote stories that cast doubt on democracy or push pro-China and anti-American views were a weaker justification for interfering with free speech than concerns about foreign terrorism.
“The government just doesn’t get to say ‘national security’ and the case is over,” said Mr. Fisher, adding, “It’s not enough to say ‘national security’ — you have to say ‘what is the real evil? ””
The Biden administration defended the right of Congress to enact the law.
The solicitor 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 unrestricted speech on TikTok once the platform is freed from foreign control.
“All the same talk that happens on TikTok could happen after the divestiture,” he said. “The law does not regulate this at all. So it doesn’t mean you can’t have pro-China speech, you can’t have anti-American speech. It doesn’t adjust the algorithm.”
He added: “TikTok, if they were able to do it, could use the exact same algorithm to show the same content from the same users. All it does is try to surgically remove the ability of a foreign adversary nation to receive our data and be able to exercise control over the platform.”
The court seems unlikely to wait for Trump.
President-elect Donald J. Trump asked the Supreme Court to issue an order delaying the law’s effective date until after he takes office on January 20.
Mr. Trump once shared the view that Chinese control of TikTok was an intolerable national security risk, but changed course around the time he met with a billionaire Republican donor with a stake in its parent company.
If the court upholds the law, TikTok will be effectively banned in the United States on January 19, Mr. Francisco. He reiterated the request that the court temporarily stop the law from going into effect to delay that deadline, saying it would “just buy everybody some breathing room.” It may be a “different world” for TikTok after January 20, he added.
But the judges paid little attention to this idea, suggesting that they did not take it seriously. The short application of Mr. Trump from the court to resolve the matter after President Biden’s term ends so he can handle it — signed by his pick for the next attorney general, D. John Sauer – long engaged in rhetoric extolling Mr. Trump, but short on substance.
