The Supreme Court on Friday wrestled with a law that could determine the fate of TikTok, a wildly popular social media platform with about 170 million users.
Congress enacted the law because it fears that the app, whose owner is based in China, is susceptible to Chinese government influence and poses a national risk. The measure would effectively ban TikTok from operating in the United States unless its owner, ByteDance, sells it by January 19.
Here are some key points:
It seemed likely that the court would uphold the law.
While judges across the ideological spectrum asked tough questions of both sides, the overall tone and thrust seemed to suggest greater skepticism toward arguments from lawyers for TikTok and its users that the First Amendment barred Congress from enacting the law.
The questioning opened with two conservative members of the court, Justice Clarence Thomas and Chief Justice John G. Roberts Jr., suggesting that it was not TikTok, an American company, but its Chinese parent company, ByteDance , to be directly affected by the law. .
Another conservative, Justice Brett M. Kavanaugh, focused on the risk that the Chinese government could use the information TikTok is collecting on tens of millions of American teenagers and twenty-somethings to “develop spies, turn people, blackmail people.” when they get old and move away. work for national security or military agencies.
Justice Elena Kagan, a liberal, asked why TikTok couldn’t simply create or buy another algorithm instead of using ByteDance’s.
And another liberal, Justice Ketanji Brown Jackson, said he believes the law is less about speech than association. He suggested that preventing TikTok from associating with a Chinese company would be like preventing Americans from associating with foreign terrorist groups for national security reasons. (The Supreme Court found it constitutional.)
However, several justices were skeptical of much of the government’s justification of the law: the risk that China could “hidden” force TikTok to manipulate content shown to Americans or collect user data to achieve its geopolitical goals.
Both Justice Kagan and Justice Neil M. Gorsuch, a conservative, pointed out that everyone now knows that China is behind TikTok. They seemed interested in whether the government’s interest in preventing “covert” use of the platform by a foreign adversary could be achieved in a less heavy-handed way, for example by placing a label warning users of that risk.
Lawyers for TikTok and its users have argued that the law is unconstitutional.
Two lawyers have argued that the law violates the First Amendment: Noel Francisco, who represents both TikTok and ByteDance, and Jeffrey Fisher, who represents TikTok users. Both suggested that concerns about the Chinese government’s potential manipulation of information American users see on the platform were not enough to justify the law.
Francisco argued that the government of a free country “has no valid interest in preventing foreign propaganda” and cannot constitutionally try to prevent Americans from being “persuaded by Chinese disinformation.” This targets the content of the speech, which the First Amendment does not allow, he said.
Fisher said fears that China could use its control of the platform to promote posts that sow doubt about democracy or push pro-China and anti-American views are a weaker justification for interfering in free speech than concerns about terrorism foreigner.
“The government just can’t say ‘national security’ and the case is closed,” Fisher said, adding: “It’s not enough to say ‘national security’ — you have to say ‘what’s the real harm?’ ‘”
The Biden administration has defended Congress’s right to enact the law.
The attorney general, Elizabeth B. Prelogar, argued that Congress had legitimate authority to enact the statute and that it did not violate the First Amendment. He said it was important to recognize that the law vacates free speech on TikTok once the platform is freed from foreign control.
“Everything that is happening on TikTok could happen after the divestment,” he said. “The law doesn’t regulate it at all. So it doesn’t mean that you can’t have pro-China or anti-American speeches. It’s not adjusting the algorithm.”
He added: “TikTok, if it were able to do this, could use exactly the same algorithm to display the same content from the same users. All it is doing is trying to surgically remove a foreign adversary nation’s ability to obtain our data and be able to exercise control over the platform.”
The court seems unlikely to wait for Trump.
President-elect Donald J. Trump has asked the Supreme Court to issue an injunction delaying the law from taking effect until he takes office on Jan. 20.
Trump once shared the view that Chinese control of TikTok was an intolerable national security risk, but he reversed course around the time he met with a billionaire Republican donor with a stake in its parent company.
If the court were to uphold the law, TikTok would effectively be banned in the United States on January 19, Francisco said. He reiterated his request that the court temporarily suspend the law’s entry into force to push back that deadline, saying it would “just give everyone some breathing room.” It could be a “different world” for TikTok after January 20, he added.
But the justices paid little attention to that idea, suggesting they didn’t take it seriously. Trump’s letter asking the court to delay the matter beyond the end of President Biden’s term so he could handle it — signed by his pick to be the next attorney general, D. John Sauer — was long rhetoric extolling Mr. Trump , but short on substance.