The Supreme Court on Friday appeared inclined to uphold a law that could effectively ban TikTok, the wildly popular app used by half the country.
Even as several justices expressed concern that the law violated the First Amendment, a majority seemed convinced that it did not target TikTok's speech rights, but rather its ownership, which the government says controlled by China. The law requires the app's parent company, ByteDance, to sell TikTok by January 19. If not, the law requires the app to be closed.
The administration offered two reasons for the law: to combat classified disinformation from China and to ban the collection of private information about Americans. The court was divided on the first justification. But several judges appeared concerned about the possibility that China could use data from the app for espionage or blackmail.
“Congress and the president were concerned,” said Justice Brett M. Kavanaugh, “that China was gaining access to information about millions of Americans, tens of millions of Americans, including teenagers, people in their 20s.”
That data, he added, could be used over time to develop spies, to change people, to blackmail people, people who in a generation will be in the FBI or the CIA or the State Department will work.
Noel J. Francisco, a lawyer for TikTok, said he did not dispute those risks. But he said the government could address them by not effectively ordering the app to, as he put it, “shut down.”
Chief Justice John G. Roberts Jr. didn't seem convinced.
“Should we ignore the fact that the ultimate parent is in fact subject to intelligence work for the Chinese government?” asked Chief Justice Roberts.
The court handled the case exceptionally quickly and will probably deliver its ruling at the end of next week. His decision will be one of the most consequential of the digital age, as TikTok has become a cultural phenomenon powered by a sophisticated algorithm that provides entertainment and information that touches nearly every facet of American life.
The Supreme Court has repeatedly heard cases on the application of freedom of expression principles to giant tech platforms, although it has not yet issued final rulings. It has also struggled with the application of the First Amendment to foreign speakers, ruling that they generally lack constitutional protections, at least for speeches delivered abroad.
Justice Elena Kagan recognized that TikTok, an American company, has First Amendment rights. But she asked, “How are those First Amendment rights really involved here?”
If ByteDance divests TikTok, Judge Kagan says, the American company will remain free to say what it wants.
Jeffrey L. Fisher, an attorney for users of the app, said his clients should not be required to move to other platforms, using an analogy to newspapers.
“It's not enough to say to a writer, you can't publish an op-ed in The Wall Street Journal, but instead in The New York Times,” he said, adding that “TikTok has a clear editorial and publishing perspective.”
The law, which passed in April with broad bipartisan support, said urgent action was needed because ByteDance was effectively controlled by the Chinese government, which could use the app to collect sensitive information about Americans and spread classified disinformation.
TikTok says the law violates both the First Amendment rights and those of its 170 million U.S. users and has urged the court to strike down the law. It has repeatedly argued that a sale is impossible, in part because China would ban the export of ByteDance's algorithm.
TikTok has also argued that there is no public evidence that the US government's concerns about Chinese interference in the United States have materialized. But the government has alleged in court filings that the app has acquiesced to Beijing's demands to censor content outside China.
Several justices appeared to be looking for a limited basis on which to enforce the law, and they leaned toward the government's interest in protecting U.S. data.
Elizabeth B. Prelogar, the U.S. attorney general, defended the law on that basis, saying China “has a voracious appetite to get its hands on as much information as possible about Americans, and that creates a powerful weapon here.”
Judge Samuel A. Alito Jr. expressed concern about what he said was “an enormously powerful, popular application” that “collects an arsenal of information about American citizens.”
The court was more divided on whether possible secret disinformation or propaganda justified the ban.
“Look,” said Mr. Francisco, “everyone is manipulating the content. There are a lot of people who think that CNN, Fox News, The Wall Street Journal and The New York Times manipulate their content.”
Outside the court, some TikTok creators streamed the live audio of arguments to their followers, answering questions, expressing fear about the looming ban and holding small hand warmers in the 70-degree weather.
Andrea Celeste Olde, who traveled with her husband from Bakersfield, California to speak out against the law, said the platform helped her launch a new career as a social media monetization coach after a decade spent living at home for three years. had raised children. “TikTok is where I created my community,” she said. “I've made friends. I have business partners. This is how we connect.”
Other avid users of the app said it provided them with unique business opportunities. They rarely have to pay to gain enough followers to drive sales with eye-catching videos, unlike other platforms, says Sarah Baus, a beauty creator with nearly 800,000 followers. “TikTok has allowed me to grow my audience much faster,” she said.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the law in early December, ruling that it was justified by national security concerns.
“The First Amendment exists to protect freedom of speech in the United States,” Justice Douglas H. Ginsburg wrote for the majority, joined by Justice Neomi Rao. “Here, the government acted solely to protect that freedom from a foreign enemy nation and to limit that adversary's ability to collect data about people in the United States.”
In a concurring opinion, Chief Justice Sri Srinivasan acknowledged that under the law's ban, “many Americans could lose access to an outlet for expression, a source of community, and even a means of income.”
“Congress found it necessary to accept that risk,” he wrote, “given the serious threats to national security it experienced.” And because the record shows that Congress's decision was thoughtfully considered, consistent with long-standing regulatory practice and without an institutional purpose to suppress particular messages or ideas, we are not in a position to overrule it.”
Echoing a point from an appeals court ruling that upheld the law, Judge Kavanaugh said the law had historical analogues. “There is a long tradition of preventing foreign ownership or control of the media in the United States,” he said.
ByteDance has said that more than half of the company is owned by global institutional investors and that the Chinese government has no direct or indirect ownership interest in TikTok or ByteDance.
The government acknowledged that ByteDance is based in the Cayman Islands, but said it is headquartered in Beijing and mainly managed from offices in China.
The deadline set by law falls one day before the inauguration of newly elected President Donald J. Trump. In an unusual letter last month, nominally in support of neither side, he asked the justices to temporarily block the law so he could address the issue once he was in office.
“President Trump currently opposes the ban on TikTok in the United States,” the letter said, “and seeks the opportunity to resolve current issues through political means once he comes into power.”
Judge Kavanaugh asked Mr. Francisco, TikTok's attorney, what would happen on Jan. 19 if the court ruled against the company in the meantime.
“As I understand it,” Mr. Fransisco said, “we're going dark.” He added that the court should temporarily block the law to “give everyone a little breathing room.”
The law allows the president to extend the deadline by 90 days under limited circumstances. But that provision does not appear to apply because it requires the president to certify to Congress that significant progress has been made toward a sale backed by “relevant binding legal agreements.”
Ms Prelogar, the government lawyer defending the law, said any closure from January 19 would not have to be permanent. That idea intrigued Judge Alito.
“So if we were to affirm that TikTok would be forced to cease operations on January 19,” Judge Alito said, “you are saying that after that point a divestiture could occur and TikTok could continue operating again.”
Minh Kim And Sapna Maheshwari reporting contributed.
