Supreme Court looks ready to support impending ban
WASHINGTON − As the Supreme Court on Friday heard starkly different views on whether the government can effectively ban a social media platform used by 170 million Americans, Chief Justice John Roberts asked if the Chinese-based ByteDance is using TikTok to get Americans to argue with each other.
“If they do, I’d say they’re winning,” Roberts said to laughter in the court.
But there didn’t seem to be a lot of argument among the justices themselves about where they stood.
Before Friday’s approximately two-and-a-half hours of debate, experts thought the court was more likely to be swayed by the government’s national security concerns than by TikTok’s claim that forcing the company to break ties with ByteDance or be banned in the U.S. violates the 1st Amendment rights of TikTok and its users.
The justices did, in fact, spend more time pushing against TikTok’s arguments than it did sparring with Solicitor General Elizabeth Prelogar, who was defending the sell-or-be-banned law passed by Congress last year and backed by President Joe Biden.
But looming over the debate was what could happen after President-elect Donald Trump takes office on Jan. 20, the day after TikTok must be divested.
Trump, who tried to ban TikTok during his first administration, has since promised to “save” it.
Here are the top takeaways from Friday’s arguments.
More:TikTok ban at the Supreme Court: The view inside and outside the high court
How real is TikTok threat?
TikTok represents a national-security threat in part because of the massive amounts of data the company shares with its parent company in China, ByteDance, according to Prelogar.
“It’s eye-opening,” Prelogar said. “It creates this gaping vulnerability in the system because once that data is in China, the PRC (People’s Republic of China) can demand that ByteDance turn that data over and keep that assistance secret.”
Roberts said Congress found ByteDance to be “subject to Chinese laws that require it to assist or cooperate with the Chinese government’s intelligence work.”
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“Are we supposed to ignore that the ultimate parent is in fact subject to doing intelligence work for the Chinese government?” Roberts asked TikTok’s lawyer. “It seems to me that you are ignoring the major concern here of Congress, which was Chinese manipulation of the content, and acquisition and harvesting of the content.”
Justice Brett Kavanaugh said Congress and the president were concerned China is harvesting information about Americans over time to develop spies and blackmail people years from now.
“That seems like a huge concern for the future of the country,” Kavanaugh said.
ByteDance’s − and China’s − control of TikTok disputed
Justice Neil Gorsuch said the government and TikTok dispute how much control China has over the company and asked what the record shows.
“Somebody has to be right and somebody has to be wrong about that,” he said.
Noel Francisco, a TikTok lawyer, said that while it would be a bad business decision for the company to choose not to use ByteDance’s algorithm as a matter of course, it can still refuse China’s pressure to do something nefarious.
“Even if China could exercise overwhelming power against TikTok versus ByteDance, I don’t think it would change the legal analysis,” Francisco said.
More:Why the Supreme Court is likely to side against 170 million TikTok users
Could Trump choose not to enforce the law?
Kavanaugh probed whether Trump can choose not to enforce the ban after he takes office on Jan. 20.
The Justice Department’s lawyer, Prelogar, said presidents generally have discretion about how to enforce laws. Trump would want to review all the national security information that has been gathered since he was last in office before deciding whether to enforce the ban, she said.
Kavanaugh suggested Apple, Google and any other conduits for the app may feel a presidential directive not to enforce the law wouldn’t be enough protection from the law’s stiff penalties.
“They’re not going to take that risk unless they have the assurance that a presidential statement of non-enforcement is in fact something that can be fully relied on because the risk is too severe otherwise, right?” Kavanaugh asked.
Prelogar said decisions by third-party companies to not carry TikTok wouldn’t be permanent, but could spur ByteDance to seriously consider selling TikTok.
Alito questions whether court could temporarily block law
Justice Samuel Alito asked whether the court could temporarily postpone the law from taking effect Jan. 19.
Prelogar said the court shouldn’t do that unless TikTok was likely to win based on its First Amendment claim of a right to distribute its content. But she said that was unlikely because it wasn’t just an executive action, but done in concert with bipartisan majorities in Congress.
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“To be honest, I think that there is no argument to be made that you should find that likelihood of success,” Prelogar said.
Alito also asked whether the court could administratively halt the law temporarily. Prelogar said she would defer to the justices about whether they have enough time to decide the case, but that both sides were ready to argue the case Friday.
“I think it is in the interest of Congress’ work and our national security to resolve the case and allow the statute to take effect,” she said.
Justice Department said TikTok may be playing chicken
TikTok’s attorney said the company won’t be able to meet the law’s divestiture requirement by Jan. 19, so the platform will cease to exist in the U.S. unless the law is blocked.
“At least as I understand it, we go dark,” Francisco said. “Essentially the platform shuts down.”
The Justice Department said the company may be engaging in a game of chicken with the government.
“It’s hoping the United States is going to blink first through our court system or through the executive branch getting cold feet about enforcing the law,” Prelogar said.
But when push comes to shove and the restrictions take effect on Jan. 19, she said, TikTok might find it can divest after all.
Are 1st Amendment rights at stake?
The two sides clashed over whether the ban infringes on the First Amendment rights of TikTok, an American company, or of its users.
Francisco, a former solicitor general representing TikTok, said it’s the algorithm that decides what is the best mix of content. Losing the ByteDance algorithm through a sale of TikTok would limit the app’s ability to serve its users.
And Jeffrey Fisher, a lawyer representing TikTok creators, said Americans have long enjoyed the right to work with foreign publishers.
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The government’s concern that China can covertly manipulate content on the platform is not enough to overcome the First Amendment issues, he said.
“Mere ideas do not constitute a national security threat,” Fisher said, and restricting speech because it might sow doubt about U.S. leaders or undermine democracy “are the kinds of things our enemies do.”
But Prelogar said the First Amendment would only come into play if Congress has been trying to discriminate against particular subject matters or viewpoints.
“Here, Congress just wants to cut the (People’s Republic of China) out of the equation altogether and all the same speech could continue to happen on the platform,” Prelogar said.
Are there better ways of addressing the government’s concerns?
Attorneys for TikTok and the platform’s content creators argued the government had less drastic ways of addressing its concerns about covert content manipulation or data gathering.
The government could require a warning to users of the potential for Chinese government manipulation and could prohibit TikTok from sharing sensitive user data with a foreign adversary, they argued.
But Prelogar said a “generic, generalized disclosure” wouldn’t reasonably put users on notice about when the manipulation is happening. She compared that to a sign in a store telling customers that one of the million items in that store causes cancer.
Prelogar also said she was surprised to hear TikTok’s attorney say it’s possible to block TikTok from sharing data with ByteDance. During the years-long discussions between the government and the company, she said, TikTok never suggested it was possible to create a “true firewall.”
ByteDance, Prelogar added, is “not a trusted partner.”
Alito: Does TikTok have ‘magical algorithm’?
Alito questioned what’s so special about TikTok. He mused about other social-media companies such as Meta jumping in to “take advantage of the very lucrative market.” And he suggested allegiance of its content creators might just be like the preference for a familiar old shirt.
“I’m just wondering whether this is like somebody’s attachment to an old article of clothing,” Alito said. “Is there some reason to think only ByteDance has devised this magical algorithm?”
But Fisher, a lawyer for TikTok creators, said competitors have tried for years to match TikTok’s success and “fallen dramatically” short.
TikTok users ponder a post-TikTok world
As the justices debated the fate of TikTok, Americans who use the platform for news, entertainment or to make a living were pondering a post-TikTok world.
Callie Goodwin, who flew in from South Carolina with a friend and fellow TikTok content creator for the oral arguments, said as much as 98% of the sales from her greeting card and personalized gift store come from people who find her business on TikTok.
Several months ago, during the height of the holiday gift shopping season, she said she sold over $30,000 worth of products on the app in just nine days.
“If we were to lose TikTok, I really fear for the survival of my business,” Goodwin told USA TODAY.
But Eli Benson, a college student, said he might take a TikTok ban as a cue to decrease her social media consumption.
“Maybe this is my sign to be done,” Benson said. “I would be ready for a little bit less social media.”
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