Supreme Court Seems Skeptical of TikTok’s Bid to Overturn Forced Divestiture Law

The Supreme Court in Washington on March 10, 2020. Samira Bouaou/The Epoch Times

U.S. Supreme Court justices seemed skeptical of TikTok’s request to halt a federal law requiring indirect owner ByteDance to divest itself of the company by Jan. 19 or cease U.S. operations.

Their comments came on Jan. 10 in a dramatic legal showdown nine days before the law is scheduled to take effect. Oral argument took place in TikTok Inc. v. Garland and its companion case, Firebaugh v. Garland.

President-elect Donald Trump, who will be inaugurated on Jan. 20 and is himself a social media entrepreneur, filed a brief asking the justices to stay the law to give him an opportunity to develop a political solution when he returns to the White House.

Trump was not represented by an attorney at the hearing and his position on the case was not discussed at length.

According to the emergency application filed by TikTok, in 2023, there were about 170 million monthly U.S. users of the platform who uploaded more than 5.5 billion videos that received upward of 13 trillion views, half of which occurred outside the United States. That same year, users viewed content originating from abroad more than 2.7 trillion times.

President Joe Biden, who leaves office days from now, signed the Protecting Americans from Foreign Adversary Controlled Applications Act on April 24, 2024, after it was passed by bipartisan majorities in the House and Senate.

TikTok is operated in the United States by TikTok Inc., a U.S. company that Cayman Islands-based ByteDance Ltd. owns indirectly.

TikTok acknowledges that ByteDance owns subsidiaries in China and other nations but denies Chinese influence in its operations.

Echoing criticism of TikTok expressed by lawmakers on both sides of the aisle, the law expresses national security-related concerns that the Chinese regime may access and abuse the personal data of American TikTok users, using it to seek strategic advantage over the United States and disseminate propaganda.

The statute requires TikTok Inc. to separate itself from ByteDance by Jan. 19—the day before Trump will be inaugurated—or stop operating in the United States.

During the oral argument, TikTok attorney Noel Francisco said the law forces TikTok to shut down.

The law, which “singles out a single speaker for uniquely harsh treatment,” requires TikTok “to go dark unless ByteDance executes a qualified divestiture,“ he said. ”Whether you call that a ban or divestiture, one thing is clear: it’s a burden on TikTok’s speech, so the First Amendment applies.

“The government has no valid interest in preventing foreign propaganda.”

The government’s “real target … is the speech itself,” the lawyer said.

Several justices responded.

“TikTok can continue to operate as long as it is not associated with ByteDance,” Justice Ketanji Brown Jackson said.

Chief Justice John Roberts said Congress found that ByteDance cooperates with China in manipulating content.

“Are we supposed to ignore that TikTok has to do intelligence work for the Chinese government?” Roberts asked.

Justice Neil Gorsuch said the government argues that ByteDance has responded to Chinese requests to censor content outside the United States.

U.S. Solicitor General Elizabeth Prelogar said TikTok poses a threat to U.S. national security.

“We know China has a voracious appetite to get its hands on as much data about Americans as possible,” she said.

That country is a “sophisticated foreign adversary … [that] can engage in false flag operations.”

This is a developing story. It will be updated.