On Friday, the Supreme Court indicated it may likely uphold a law that would ban TikTok in the United States starting January 19, unless the application is sold by its parent company, ByteDance, which is based in China.
The discussions revolved around a significant conflict between free speech and national security, with justices appearing to find the arguments regarding national security concerns compelling enough to potentially override the rights of TikTok and its 170 million American users.
During the lengthy session that lasted over two and a half hours, Chief Justice John Roberts articulated his primary apprehension about TikTok’s ownership ties to China and the obligations ByteDance has to comply with the Chinese government’s intelligence services.
If the law remains unchallenged, TikTok will have to “go dark” after January 19, as lawyer Noel Francisco clarified to the justices, urging for a temporary halt that would let TikTok continue its operations. He mentioned that circumstances could change following the swearing-in of President-elect Donald Trump on January 20, who has a substantial follower base on the app.
However, none of the justices, apart from Neil Gorsuch, seemed inclined to support TikTok, which would assert the ban infringes on constitutional rights. Gorsuch critiqued the Biden administration’s justification for the law, calling it a “paternalistic point of view.” He argued that TikTok had proposed a warning about potential content manipulation by the Chinese government. “Typically, wouldn’t the solution to problematic speech be more speech?” he questioned the Solicitor General, Elizabeth Prelogar, who defended the law.
Prelogar countered that such a warning would not sufficiently mitigate the issue of misinformation proliferation. Francisco and fellow attorney Jeffrey Fisher, representing TikTok users and creators, consistently directed attention toward potential First Amendment violations, emphasizing the threat to the livelihoods of content creators if the ban were enacted. Nevertheless, compared to the more tolerant inquiries directed at Prelogar, they faced notable skepticism from nearly all justices, save for Gorsuch.
Justice Brett Kavanaugh raised concerns regarding potential Chinese access to data from millions of American users, especially young individuals, for whom TikTok is a favored platform.
“This poses a significant issue for the nation’s future,” Kavanaugh remarked, noting that his own daughters are within that demographic.
Roberts dismissed Fisher’s remarks that claimed a violation of free speech rights for American TikTok users, reiterating Congress’s stance that while the intention is not to stifle expression, they are against a foreign adversary collecting data on American users.
The justices are anticipated to reach a decision soon, likely ahead of the January 19 deadline, causing anxiety among content creators and small business owners reliant on the app.
“Apart from this application, there’s no comparable alternative,” expressed Skip Chapman, co-owner of KAFX Body, a natural deodorant business in New Jersey. He mentioned that a significant portion of his revenue comes from TikTok, and he hasn’t encountered similar engagement on platforms like Amazon.
Lee Zavorskas, a content creator and licensed esthetician from New Hampshire, articulated that nearly half of her income is derived from TikTok through product promotions for various companies, stating she found it too distressing to digest Friday’s court debates. As a result, she opted to focus on developing her YouTube channel.
ByteDance has made it clear that it will not sell TikTok, with Francisco noting that divesting the platform might not be feasible under the law’s stipulations. However, several investors, including Trump’s former Treasury Secretary Steven Mnuchin and billionaire Frank McCourt, have shown interest in acquiring TikTok. McCourt’s Project Liberty initiative has disclosed a proposal to ByteDance involving U.S. assets, in partnership with undisclosed entities including “Shark Tank” host Kevin O’Leary, without revealing the financial specifics of the offer.
If TikTok isn’t sold to an approved buyer, the federal law would restrict app stores run by Apple and Google from providing access to the service. New users would not be able to download the app, and current users could stop receiving updates, making the app ultimately unusable, as clarified by the Justice Department during court hearings.
Prelogar suggested that potential sales, even post-ban, could allow TikTok to resume activities, drawing parallels with the swift sale of Twitter to Elon Musk, which she stated was completed within six months.
TikTok has been aware since 2020, during Trump’s presidency, that a sale might become crucial if it fails to address U.S. national security demands. This law represents the culmination of a prolonged debate within Washington regarding TikTok, which is viewed as a national security risk due to its Chinese affiliations.
Officials in the U.S. assert that the extensive data collected by TikTok, including sensitive viewing habits, could be subject to coercive access by the Chinese government. Additionally, there are fears regarding the possible manipulation of the platform’s proprietary algorithm by Chinese authorities.
TikTok has consistently refuted claims that it could serve as a tool for Beijing. The company had previously engaged in discussions with the Biden administration during 2021 and 2022 to resolve U.S. data privacy anxieties, claiming that the administration ceased negotiations after reviewing a draft agreement put forward in August 2022. However, the Justice Department contended that the proposal was deemed “insufficient” because it would maintain ties to Chinese interests without resolving security concerns, asserting that the Executive Branch could not rely on ByteDance’s compliance.
A unanimous decision from a panel of three judges, comprised of two aligned with Republican appointees and one with a Democratic appointee, upheld the law in December, pushing TikTok to swiftly appeal to the Supreme Court.
