The Supreme Court on Friday heard oral arguments in a fast-track case over the future of TikTok, the Chinese-owned social media app that will be banned from operating in the United States in just nine days unless it is sold or the Supreme Court intervenes within the 11th hour. The trial was held. court.
At issue is the Protecting Americans from Regulatory Applications by Foreign Adversaries Act, which was signed by President Biden and passed by Congress in April with bipartisan approval. The law gives TikTok nine months to leave Chinese parent company ByteDance or be removed from U.S.-based app stores and hosting services.
On Friday, Biden administration lawyers reiterated their argument that TikTok's Chinese ownership poses a “significant” national security risk to U.S. users.
U.S. Attorney General Elizabeth Preloger has accused China of manipulating algorithms to prioritize certain content and ordering parent company ByteDance to hand over vast amounts of user data on U.S. users collected by TikTok. pointed out the risk that apps could be weaponized.
“We know China's voracious desire to get as much information as possible about Americans, and that creates a powerful weapon here,” Preloger said. “Because China can order ByteDance.” [to] Please comply with any requests given to obtain that data. ”
“TikTok's vast dataset will give China powerful tools for harassment, recruitment, and espionage,” she added.
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A participant holds a sign in support of TikTok outside the U.S. Capitol on March 13, 2024 in Washington, DC. Lawmakers have voted to pass a law that would require TikTok to divest from its Chinese parent company ByteDance within nine months. (Anna Moneymaker/Getty Images)
At the beginning of oral arguments in TikTok's case, the court's justices generally seemed skeptical about the company's core argument that the law restricts speech.
“What the heck is TikTok's speech here?” Justice Clarence Thomas asked the court in the first moments of oral argument if the law actually violates the First Amendment. I asked as an obvious early sign of doubt.
As of the conclusion of oral arguments, it remains unclear how the Supreme Court will proceed with the issue, but a ruling or order is expected before the ban goes into effect on January 19th.
The Supreme Court and its 6-3 conservative majority have historically respected Congress on national security issues.
The controversial divestment law passed Congress last year with strong bipartisan support. With guidance from top Justice Department officials, they also worked directly with members of Congress to craft the bill and help it withstand potential legal challenges.
But this discussion also comes as President-elect Trump hints that he may support TikTok. His lawyers filed an amicus brief last month asking the Supreme Court to delay the ban until he takes office.
Chief Justice John Roberts said that if China and ByteDance's goal through TikTok is “to try to get Americans to argue with each other,” then “they're winning.”
TikTok's lawyer, Noel Francisco, on Friday sought to frame the lawsuit primarily as a limitation on free speech protections under the First Amendment, which the company argues also applies to TikTok's incorporation in the United States. It is claimed that it will be done.
On Thursday, the TikTok logo appeared on smartphones in Suqian, Jiangsu Province, China. (CFOTO/Sipa USA)
First Amendment protections must be considered under intense scrutiny, which requires the government to assume a higher burden of proof when justifying the constitutionality of laws. More specifically, laws must be created to serve the government's compelling interests and must be narrowly tailored to achieve those interests, but TikTok says the law does not meet that test. There is.
It is a difficult legal test to satisfy in court. But the U.S. Court of Appeals for the District of Columbia Circuit used the law last month when considering divestiture laws and still voted to uphold the law. That means a judge could theoretically consider the case under strict scrutiny and still choose to uphold the law. The January 19th ban is looming.
On Friday, Justice Sonia Sotomayor noted that the case appears to be the first before the court that focuses directly on ownership of platforms and apps, rather than speech.
The Liberal justices also questioned whether TikTok's lawyers might consider the law's divestment requirements as a data control case rather than a free speech issue.
President-elect Trump's X account can be seen displayed on a smartphone along with the TikTok logo. (Avishek Das/SOPA Images/Sipa USA)
Weighing this incident as a data management incident would trigger a lower level of scrutiny. Francisco acknowledged this point.
Francisco told the justices during Friday's oral argument that the U.S. government “has no legitimate interest in preventing foreign propaganda” and that the platforms and their owners have the highest level of free speech protection under the U.S. Constitution. He said he believed he was entitled to the protection of freedom.
Francisco told Chief Justice John Roberts that he believes the court should grant First Amendment protections because TikTok operates as a subsidiary of a U.S. corporation.
TikTok's lawyers also slammed the Chinese government's control over the app and ByteDance's control over the algorithms that show users certain content.
Asked by Justice Neil Gorsuch whether parts of the recommendation engine were under Chinese control, Francisco said, “No.”
“What this means is that many parts of the source code are embodied in intellectual property, owned by the Chinese government, and could be sold or restricted by sale,” he said. said. “The fact remains that this is operated in the United States by TikTok, which is incorporated.”
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US Supreme Court building in Washington DC (AP Photo/Mariam Zuhaib))
The app will be banned from operating in the US by January 19th unless a judge intervenes or TikTok's owners agree to a sale.
Oral arguments center on the level of First Amendment protection that should be afforded to TikTok and its foreign owner ByteDance.
This is not the first time the Supreme Court has debated whether the full First Amendment protections should be extended to foreign speakers. Previous cases have ruled that speech by foreign governments or individuals is not entitled to full protection.
The Biden administration will argue that the law focuses solely on the company's control of the app, but the administration's lawyers say it is less about the content of the app and more about whether it poses a “critical national security threat” to Americans. It is argued that this could pose a threat of
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Lawyers for the administration will also make the following argument to Congress: did not impose any restrictions on speechmuch less restrictions based on viewpoint or content, and therefore do not meet the test for a free speech violation under the First Amendment.
The court's decision could have a major impact on the approximately 170 million Americans who use the app.
The judges have agreed to hold an expedited hearing in December, giving them just nine days to rule before the ban takes effect on January 19th.
