TikTok ban likely to be upheld by Supreme Court

The Supreme Court on Friday heard oral arguments in the case involving the future of TikTok in the United States, and a law that could effectively ban the popular app as soon as next week.

The Protecting Americans from Foreign Adversary Controlled Applications Act targets TikTok and will impose harsh civil penalties on app “entities” that carry the service after a Jan.19 deadline. Among several issues the justices considered was whether the law violates the Constitution’s free speech protections.

During the over two-hour long argument, justices repeatedly questioned TikTok’s head 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.

Still, questions remain about president-elect Donald Trump’s willingness to enforce the law once he assumes office, just a day after it goes into effect. If Trump decides not to enforce violations, third-party service providers like Apple and Google will face a dilemma: Whether to follow the letter of the law or put their trust in the new administration’s assurances that they can effectively ignore it.

Cornell University law professor Gautam Hans said in a statement that “the consensus that the Court will allow the ban to go into effect seems correct.”

“What remains unfortunate is the credulity with which many of the justices treated this law, which clearly implicates free speech rights on underspecified national security grounds,” Hans said.

Noel Francisco, the U.S. solicitor general during president-elect Donald Trump’s first term, opened the hearing as TikTok’s legal representative. He echoed Trump’s desire for the court to halt the effective ban, in order to give Trump time to find a political resolution to the national security concerns over TikTok.

The justices peppered Francisco with questions about TikTok’s ties to China-based ByteDance, which owns the social media service, and interrogated TikTok’s first-amendment argument against the law.

Much of the court’s line of inquiry focused on the ownership-structure of TikTok. When Justice Samuel Alito asked Francisco whether he would make the same argument if TikTok was directly owned by the Chinese government, the TikTok lawyer said he would not.

But Francisco also insisted that Beijing does not force TikTok to make content decisions.

“We absolutely resist any kind of content manipulation by China at all,” said Francisco. 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 the TikTok content creators who are challenging the law.

In the interest of national security, “Congress can prohibit Americans … from associating with terrorist organizations,” said Fisher. But the “government just doesn’t get to come in and say ‘national security’ and the case is over.”

“You have to dig underneath what is the national security claim,” Fisher said.

Much of the argument in support of the TikTok divesture law so far centers around the claim that TikTok indeed poses a national security threat. This was at the heart of U.S. solicitor general Elizabeth Prelogar’s argument.

Americans using TikTok may believe “they are speaking to one another,” Prelogar said. But in reality, “the PRC, a foreign adversary nation, is instead exploiting a vulnerability in the system.”

The justices pressed Prelogar on how TikTok differs from other foreign-owned outlets, like Politico and the Oxford University Press.

“China is a foreign adversary nation that looks for every opportunity it has to weaken the United States,” she said. “If it has control over [TikTok], it’s hard to predict exactly how it’s going to use that as a tool to harm our interests.”

“But we know it’s going to try,” Prelogar said.

“What we’re trying to prevent is not the specific subject matter, the specific viewpoints, but the technical capability of a foreign adversary nation to use a communications channel,” Prelogar said.

Regarding whether the incoming Trump administration could extend the deadline before the law is enacted, Prelogar said that the U.S. government has not yet taken a position on that.

“We have not run it to ground, in part because it’s simply not presented here,” Prelogar said.

Trump will be inaugurated on Jan. 20, and the deadline for divestiture is Jan. 19.

Regarding whether president-elect Trump can choose to not enforce the law, Prelogar said that “raises a tricky question.”

It’s unclear when the court will hand down a decision, and if China’s ByteDance continues to refuse to divest TikTok to an American company, it faces a complete ban nationwide.

The roughly 115 million U.S. TikTok monthly active users could face a range of scenarios depending on when the Supreme Court hands down a decision.

If no word comes before the law takes effect on Jan. 19 and the ban goes through, it’s possible that users would still be able to post or engage with the app if they already have it downloaded. However, those users would likely be unable to update or redownload the app after that date, multiple legal experts said.

Thousands of short-form video creators who generate income from TikTok through ad revenue, paid partnerships, merchandise and more will likely need to transition their businesses to other platforms, like YouTube or Instagram.

“Shutting down TikTok, even for a single day, would be a big deal, not just for people who create content on TikTok, but everyone who shares or views content,” said George Wang, a staff attorney at the 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 speech online,” Wang said.

It’s unclear when the Supreme Court will issue its ruling, but the case’s expedited hearing has some predicting that the court could issue a quick ruling. 

The case will have “enormous implications” because TikTok’s user base in the U.S. is so large, said Erwin Chemerinsky, dean of Berkeley Law. 

“It’s unprecedented for the government to prohibit platforms for speech, especially one so many people use,” Chemerinsky said. “Ultimately, this is a tension between free speech issues on the one hand and claims of national security on the other.”

“There are valid reasons to have concerns about privacy and data collection,” said Hans, of Cornell.
“But this law specifically targets one platform in ways that should make us all unsettled about whether future government action could target other speech platforms.”

WATCH: It appears TikTok could really get shut down, says Jim Cramer