Supreme Court signals it will uphold ban on TikTok over national security concerns and other takeaways from oral arguments
By John Fritze, Tierney Sneed and Clare Duffy, CNN
(CNN) — A majority of the Supreme Court appeared likely to uphold a controversial ban on TikTok over concerns about its ties to China, with justices lobbing pointed questions at lawyers for the social media app and a group of its content creators.
During more than two hours of oral arguments, many of the justices appeared to view the sell-or-ban law approved by Congress in April not as one that primarily implicates the First Amendment but rather as an effort to regulate the potential foreign control of an app used by 170 million Americans.
The law, which would restrict the app’s operations in the United States if its Chinese-based parent company ByteDance did not divest from the platform, is set to take effect on January 19 unless the high court steps in to block it temporarily. A decision on that question – the ban’s implementation date – could come quickly, long before the justices resolve any underlying questions about speech protections.
Two presidents – Donald Trump and Joe Biden – have both raised concerns in the past about both content manipulation on the platform and its data collection practices. TikTok argued those concerns were speculative and resisted any suggestion that the Chinese government had a role in picking the cat videos, recipes and news that millions of Americans view on the app.
Here are the key takeaways from Friday’s oral arguments:
Roberts skeptical that First Amendment applies
Justices across the ideological spectrum raised doubts that the TikTok ban even implicated the First Amendment. That’s a bad sign for TikTok, because to win, it had to prove first that the First Amendment applies in the case and then that the law has failed to meet its tests.
In an exchange with a lawyer for users of the application, Chief Justice John Roberts said that, in passing the law, Congress was “fine with the expression.”
“They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok,” he said.
Roberts also pressed TikTok’s lawyer on the lack of precedent of the court striking down a law, on First Amendment grounds, that was crafted around regulating a company’s corporate structure.
Justice Elena Kagan also had questions suggesting she wasn’t sure the First Amendment even applied in this case, though later in the arguments she also had skeptical questions for the government.
“The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights,” she said to the lawyer arguing on TikTok’s behalf.
Kavanaugh leans into national security concerns
Traditionally, the Supreme Court has deferred to the other branches of government when it comes to national security. That is precisely why Solicitor General Elizabeth Prelogar focused on that issue so heavily during her arguments.
“For years, the Chinese government has sought to build detailed profiles about Americans – where we live and work, who are friends and coworkers are, what our interests are and what our vices are,” Prelogar, making her final argument on behalf of the Biden administration, told the Supreme Court.
TikTok’s “immense data set,” she said, would give China “a powerful tool for harassment, recruitment and espionage.”
That argument appeared persuasive to both Roberts and Justice Brett Kavanaugh, another conservative who is often at the ideological center of the court.
Congress and the president, Kavanaugh said, “were concerned that China was accessing information about millions of Americans – tens of millions of Americans – including teenagers, people in their twenties” and that the country might use that information “to turn people, to blackmail people – people who a generation from now will be working in the FBI or the CIA or in the State Department.”
Gorsuch, Kagan have concerns about ban
Throughout the course of the arguments, conservative Justice Neil Gorsuch appeared to be the most concerned with the ban.
“Don’t we normally assume that the best remedy for problematic speech is counter speech?” Gorsuch asked, taking up a suggestion from TikTok that Congress should have considered warning labels for the platform rather than an outright ban.
“TikTok,” Gorsuch pointed out, “says it could even live with a disclaimer on its website saying this can be covertly manipulated by China.”
On a court that has reliably expanded First Amendment rights for several decades, Gorsuch expressed reservations about the government’s theory that those protections don’t even apply in this case. To underscore those concerns, he raised a hypothetical about a foreign-owned newspaper. Could the government attempt to shut down that hypothetical platform under its theory, he asked.
One of the important differences between a newspaper and social media platform, Prelogar responded, is that users of social media operate under an assumption that “it’s organically feeding them videos based on the recommendation engine.” Newspapers, she said, operate more like one-way modes of communication.
Kagan, who peppered both sides of the case with difficult questions, raised similar themes. She pointed to the nation’s history of allowing foreign messages into the United States, including communist propaganda during the height of the Cold War that may have had ties to the Soviet Union.
“You know, in the mid-20th century, we were very concerned about the Soviet Union, and what the Soviet Union was doing in this country,” Kagan said.
If Congress had told the Communist Party in the United States that it had to cut ties with the Soviet Union, “do you think that that would have been absolutely fine?”
What happens on January 19?
Unless the Supreme Court acts block the law, TikTok “will go dark” starting on January 19, its attorney, Noel Francisco, said.
“On January 19, as I understand it, we shut down,” he said.
Francisco, a former solicitor general during the Trump administration, said he expects TikTok to be removed from app stores “at a minimum.”
“But in addition, what the act says is that all of the other types of service providers can’t provide service either,” he added. “Now, there’s enormous consequences for violating that for the service providers.”
If TikTok is removed by app store operators, that means new users won’t be able to download it. For existing users who already have the app on their phones, it won’t disappear, but because they won’t be able to update it via the app stores, it likely will eventually become buggy and riddled with security vulnerabilities.
But even if the court upholds the ban, there remains considerable uncertainty around the app’s accessibility in the Trump administration. Trump has said he wants to save TikTok and the law gives him wide latitude on enforcement.
“It is possible that come January 20th, 21st, 22nd, we might be in a different world,” Francisco said.
Prelogar wouldn’t say whether Trump could extend the deadline after it’s already passed.
“When push comes to shove and these restrictions take effect,” Prelogar said, “it might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process.”
Trump looms over end of arguments
The justices could not escape that Trump, though he has not been sworn in yet, took the eyebrow-raising step of filing a brief that urged the court to temporarily pause the ban’s January 19 implementation to give him time, as president, to negotiate a deal with TikTok.
Alito, a conservative who has often battled with Prelgoar, asked the solicitor general about whether the court had the authority impose a so-called administrative stay on the law – a move that would effectively grant what Trump was seeking.
Prelogar said that the court certainly had that power if it needed more time to decide the case, but she noted it had been fully briefed and now argued.
The earlier exchange about Trump’s ability to not enforce the ban prompted questions from Kavanaugh about whether TikTok could rely on any non-enforcement assurance from the president-elect when deciding its next moves.
As the solicitor general’s presentation was winding down, liberal Justice Sonia Sotomayor returned to that idea with a warning.
“I am a little concerned that a suggestion that the president-elect or anyone else would not enforce the law, when a law is in effect and is prohibitive of certain action, that a company would choose to ignore enforcement on any assurance, other than a change in that law,” she said, while stressing that the company would, in that scenario, be violating the law.
“Whatever the new president does doesn’t change that reality for these companies,” she said.
This story has been updated with additional details.
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