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On Friday, the Supreme Court heard oral arguments in the case involving future of TikTok in the United States, and a law that could effectively banning the popular app just next week.
Protecting Americans from the Foreign Adversary Controlled Applications Act targets TikTok and imposes severe civil penalties on the “entities” of the app that bring the service after a deadline of Jan.19. Among the many problems that the justices considered was whether the law violates the protection of freedom of expression of the Constitution.
During the more than two-hour hearing, the judges repeatedly questioned TikTok’s chief lawyer about the social media platform’s ties to the People’s Republic of China. And they seemed generally unconvinced by TikTok’s main argument, that the law violates the free speech rights of its millions of individual users in the United States.
However, questions remain about the president-elect Donald TrumpWilling to apply the law once he takes office, just one day after entry into force. If Trump decides not to enforce the violations, third-party service providers will enjoy it Apple and Google Face a dilemma: Either to follow the letter of the law or put their trust in the assurances of the new administration that they can effectively ignore.
Cornell University law professor Gautam Hans said in a statement that “the consensus that the Court will allow the ban to take effect seems correct.”
“What remains unfortunate is the gullibility with which many of the judges treated this law, which clearly implicates free speech rights for underspecified national security reasons,” Hans said.
The argument of TikTok
Noel Francisco, the US attorney general during the first term of President-elect Donald Trump, opened the hearing as the legal representative of TikTok. He echoed Trump’s desire for the court to stop the effective banTo give Trump time to find a political resolution to national security concerns about TikTok.
The judges peppered Francisco with questions about TikTok’s ties to China-based ByteDance, which owns the social media service, and questioned TikTok’s First Amendment argument against the law.
Much of the court’s line of inquiry focused on TikTok’s ownership structure. When Justice Samuel Alito asked Francisco if he would make the same argument if TikTok was directly owned by the Chinese government, TikTok’s lawyer said he would not.
But Francisco also insisted that Beijing is not forcing TikTok to make content decisions.
“We absolutely resist any kind of manipulation of content from China,” Francisco said. His careful use of the word “resist,” rather than, for example, “reject” was noted by court watchers.
O’Melveny & Myers special counsel Jeffrey Fisher argued on behalf of TikTok content creators challenging the law.
In the interest of national security, “Congress can prohibit Americans … from associating with terrorist organizations,” Fisher said. But the “government just doesn’t come and say ‘national security’ and the case is over.”
“You have to dig underneath what the pretense of national security is,” Fisher said.
The case of the government
Much of the argument in support of the law of cessions of TikTok so far centers on the claim that TikTok actually represents a threat to national security. This was at the heart of the argument of the attorney general of the United States Elizabeth Prelogar.
Americans who use TikTok may believe “they’re talking to each other,” Prelogar said. But in reality, “the PRC, a foreign adversary nation, is instead exploiting a vulnerability in the system.”
The judges pressed Prelogar on how TikTok differs from other foreign outlets, such as Politico and Oxford University Press.
“China is an adversarial foreign nation that seeks every opportunity it has to weaken the United States,” he said. “If he has control [TikTok]it is difficult to predict exactly how to use this as a tool to damage our interests”.
“But we know he’s going to try,” Prelogar said.
“What we are trying to prevent is not the specific subject, the specific views, but the technical ability of a foreign adversary nation to use a communication channel,” Prelogar said.
As for whether the incoming Trump administration could extend the deadline before the law is enacted, Prelogar said the US government has not yet taken a position on it.
“We haven’t brought it to the ground, in part because it just hasn’t been presented here,” Prelogar said.
Trump will be inaugurated on January 20, and the deadline for the resignation is January 19.
As for whether President-elect Trump can choose not to enforce the law, Prelogar said it “raises a complicated question.”
It is not clear when the court will make a decision, and if China’s ByteDance continues to refuse to sell TikTok to an American company, it will face a complete ban across the country.
What are the potential impacts on users?
The approximately 115 million monthly active users of TikTok in the United States could face a number of scenarios depending on when the Supreme Court makes a decision.
If there is no word before the law goes into effect on January 19 and the ban goes through, it is possible that users will still be able to post or engage with the app if they have already downloaded it. However, those users will not be able to update or download the app after that date, several legal experts said.
Thousands of short-form video creators who generate income from TikTok through advertising revenue, paid partnerships, merchandise and most likely need to transition their activities to other platforms, such as YouTube or Instagram.
“Taking over TikTok, even for a day, would be a big deal, not only for the people who create content on TikTok, but for everyone who shares or views the content,” said George Wang, a staff attorney at Knight First. Amendment Institute who helped write the institute’s amicus briefs on the case.
“It sets a really dangerous precedent for how we regulate online speech,” Wang said.
What comes next?
It is not clear when the Supreme Court will issue its decision, but the accelerated hearing of the case has some predictions that the court could issue a quick decision.
The case will have “huge implications” because TikTok’s user base in the United States is so large, said Erwin Chemerinsky, dean of Berkeley Law.
“It’s unprecedented for the government to ban platforms for speech, especially one that so many people use,” Chemerinsky said. “Ultimately, this is a tension between free speech concerns on the one hand and national security claims on the other.”
“There are valid reasons to have concerns about privacy and data collection,” said Cornell’s Hans.
“But this law is specifically targeting one platform in ways that should all be done together on whether future government action could target other platforms of speech.”
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