The Supreme Court on Friday fought over a law that could determine the fate of TikTok, a hugely popular social media platform that has about 170 million users.
Congress passed 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 insights:
It appeared the court would uphold the law.
While the justices across the ideological spectrum asked tough questions on both sides, the overall tone and tenor seemed to indicate greater skepticism toward the arguments made by lawyers for TikTok and its users that the First Amendment prevented Congress from enacting the law .
The questioning 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, Justice Brett M. Kavanaugh, focused on the risk that the Chinese government could use information TikTok collects on tens of millions of American teens and twenty-somethings to ultimately “develop spies, change people, blackmail people” if they grow older and go to work for national security services or the military.
Justice Elena Kagan, a liberal, asked why TikTok couldn't just create or buy a different algorithm instead of using ByteDance's.
And another liberal, Judge Ketanji Brown Jackson, said she believed the law was less about expression than association. She suggested that banning TikTok from associating with a Chinese company was akin to banning Americans from associating with foreign terrorist groups for national security reasons. (The Supreme Court has ruled this constitutional.)
Still, several justices were skeptical about much of the government's justification for the law: the risk that China would “covertly” allow TikTok to manipulate content shown to Americans or collect user data to achieve its geopolitical goals.
Both Justice Kagan and Justice Neil M. Gorsuch, a conservative, emphasized that everyone now knows that China is behind TikTok. They seemed interested in whether the government's interest in preventing “covert” abuse of the platform by a foreign adversary could be achieved in a less heavy-handed way, for example by adding a label warning users of that risk.
Lawyers for TikTok and its users 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 possible manipulation by the Chinese government of the information American users see on the platform were insufficient to justify the law.
Mr. Francisco argued that in a free country, the government has “no valid interest in preventing foreign propaganda” and cannot constitutionally try to prevent Americans from being “persuaded by Chinese disinformation.” That focuses on the content of speech, which the First Amendment does not allow, he said.
Mr Fisher claimed that fears that China could use its control of the platform to promote posts that cast doubt on democracy or encouraged pro-China and anti-US views were a weaker justification for interfering with freedom of expression then concerns about foreign terrorism.
“The government can just stop saying 'national security' and the matter is over,” Mr Fisher said, adding: “It's not enough to say 'national security' – you have to say 'what is the real injury? ''
The Biden administration defended Congress's right to enact the law.
The Solicitor General, Elizabeth B. Prelogar, argued that Congress had the legal authority to enact the statute and that it did not violate the First Amendment. She said it is important to recognize that the law will leave speech on TikTok unrestricted once the platform is freed from foreign control.
“The same statements that are happening on TikTok could happen post-divestment,” she said. “The law does not regulate that at all. So it's not saying that you can't make a pro-China speech, but you can't make an anti-American speech either. It does not regulate the algorithm.”
She added: “TikTok, if it could, could use the exact same algorithm to serve the same content by the same users. “All this action does is attempt to surgically remove a foreign enemy nation's ability to obtain our data and exert control over the platform.”
It seems unlikely that the court will wait for Trump.
President-elect Donald J. Trump has asked the Supreme Court to issue an order preventing the law from taking effect until he takes office on January 20.
Mr. Trump once shared the view that Chinese control of TikTok posed an unacceptable risk to national security, but changed course around the time he met a Republican billionaire donor with a stake in the parent company.
If the court upholds the law, TikTok would be effectively banned in the United States on January 19, Francisco said. He reiterated a request for the court to temporarily pause the law's enactment to move that deadline, saying it would “just give everyone some breathing room.” It could be a “different world” for TikTok after January 20, he added.
But the judges paid little attention to that idea, suggesting they didn't take it seriously. Mr. Trump's request for the court to stay the matter beyond the end of President Biden's term so he could deal with it — signed by his pick to be the next attorney general, D. John Sauer — was long rhetoric praising Mr. Trump, but short in substance.
