TikTok's future is in jeopardy Friday when the Supreme Court hears oral arguments on a federal law that could ban the video-sharing platform nationwide within 10 days.
In its waning years, the Biden administration's Justice Department will face off in court with TikTok's lawyers and several of its creators in a seismic battle over national security and free speech.
“The bottom line of the First Amendment is that the government cannot shut down speech it believes is contrary to its interests,” said Jacob Hubert, director of the Liberty Justice Center, who is part of the creators' legal team. said.
Under a new law passed by a bipartisan majority in Congress, TikTok will no longer be available in app stores starting January 19 unless it is divested from its China-based parent company ByteDance or President Biden agrees to a delay. It disappears.
With neither solution likely to materialize, the Supreme Court's agreement to accept TikTok's challenge has emerged as the platform's best hope for last-minute change. TikTok has over 170 million users nationwide.
The case has been complicated by the change of government in Washington.
The Biden administration has been defending legislation banning TikTok since the day before Inauguration Day. Friday's arguments are expected to be the last for Attorney General Elizabeth Preloger, who is leading the administration's legal defense in the high court.
President-elect Trump shares this platform of opposition to the ban and hopes the Supreme Court will order a delay, as he plans to take control of the White House and Justice Department within two weeks.
Trump has argued that once he takes office, he can negotiate a deal that would negate the need for a judge to declare the law unconstitutional.
“Only President Trump has the impeccable deal-making expertise, electoral authority, and authority to craft a resolution that preserves the platform while addressing the national security concerns expressed by the government (concerns that President Trump himself has acknowledged).” We have the political will to negotiate,” John Sauer D., the personal attorney whom Mr. Trump nominated to replace Mr. Preloger as attorney general, said in a friend-of-the-court brief.
Hubert said Trump's brief includes important points about censorship and how Trump and Vice President Harris used TikTok during the 2024 presidential campaign. . But lawyers argued that the Supreme Court should still rule that the law violates the First Amendment.
“For the reasons we cite, this is clearly unconstitutional,” Hubert said. “I don't know why President Trump disagreed with us on that point and asked for a hold. Of course, it could be that he and his lawyers think that would be an easier path for the courts. “And when you deal with this on such short notice. ”
The justices are hearing the case at breakneck speed, even faster than when they took up Trump's presidential immunity claims on a rushed schedule last year.
In Trump's case, arguments were heard 57 days after the suit was filed. Arguments against TikTok's challenge are being heard in just 23 days.
This gives the Supreme Court an opportunity to rule on the ban before it takes effect on January 19th. If there is no ruling by then, the law will go into effect.
TikTok argues that any ban should be subject to the most stringent constitutional review, which would require the government to show that the measure was strictly tailored to serve a compelling government interest. It is claimed that there is. The law doesn't easily pass that test, TikTok argues.
The Biden administration has argued that the First Amendment does not apply to TikTok because of its foreign ownership.
But the administration also said the law is consistent with the First Amendment and national security concerns that the Chinese government could access U.S. TikTok users' data or secretly manipulate content algorithms. It claims that it is simply addressing the above concerns.
“The sale requirement is fully consistent with the First Amendment and our nation's tradition of prohibiting or restricting foreign control over communications channels and other critical infrastructure,” the Justice Department said in a court filing. “There is,” he said.
Retired Maj. Gen. Mark Montgomery, senior director of the Center for Cyber and Technology Innovation at the Foundation for Defense of Democracies (FDD), argued that TikTok allows foreign companies to advance the U.S. national security narrative.
FDD, a right-wing national security and foreign policy think tank, filed an amicus brief in support of the government with the Supreme Court.
“This is not about the First Amendment. This is about manipulating the system,” Montgomery said at a news conference Wednesday. “And if we're confused about this, China has spent the last year reminding the United States of the extent to which it uses cyber-enabled information operations to corner us. .”
He pointed to a number of cyber intrusions that have been attributed to Chinese state-sponsored hackers, including the recent Treasury Department hack.
Sarah Krebs, director of the Technology Policy Institute at Cornell University, said she believes the national security argument supporting the anti-sale law is “stronger than most people realize.”
“Both parties, both houses of Congress, and the 46th president. They've all looked at this and come to the same conclusion: The national security argument is strong,” she said.
But Hubert, the creator's lawyer, said that was not sufficient justification.
“There is no evidence of an imminent threat that would necessitate censoring speech, let alone censoring speech in the United States on such a large and unprecedented scale,” he said.
The U.S. Court of Appeals for the D.C. Circuit sided with the Biden administration in early December.
The court ruled that the law applies some level of heightened surveillance, but the government has cleared that hurdle, and the potential for banning apps due to national security concerns is “serious.” The court ruled that the impact was justified.
TikTok's fate remains uncertain, with Krebs stressing that the platform is sometimes “fungible” and users may be able to migrate to another site.
According to Axios, Lemon8, another social media platform owned by ByteDance, is running ads on TikTok to encourage users to migrate to the app ahead of a potential ban, which is also legal. It is said that there is a possibility that it will be targeted.
“I don't think it's going to be the end of the world,” Krebs said. “But I think it's not only going to impact the current social media space, it's going to impact how we think about national security and freedom of expression in this digital age.”
