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.
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.
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.
The government fears that “Americans could be persuaded by Chinese misinformation,” but that “is a decision that the First Amendment leaves to the people,” he said.
He said it would be easier for the government to ban TikTok Inc. “from sharing any sensitive user data with anyone.”
Francisco said the justices should—at a minimum—grant a preliminary injunction against the law to allow the court more time to “consider this momentous issue.”
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 specifically found that ByteDance cooperates with China in manipulating content and that its cooperation is required by Chinese law.
“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Roberts asked.
“Congress doesn’t care about what’s on TikTok,” he said. The law does not say “TikTok has to stop. They’re saying that the Chinese have to stop controlling TikTok.”
Justice Neil Gorsuch said the government argues that ByteDance has responded to Chinese requests to censor content outside the United States.
Justice Brett Kavanaugh said the government’s position on data collection was “very strong” but that concerns about China controlling content “raise much more challenging questions.”
Justice Elena Kagan acknowledged that TikTok Inc. has First Amendment rights because it is a U.S. company, but questioned whether those rights were affected by the law.
U.S. Solicitor General Elizabeth Prelogar said TikTok poses a threat to U.S. national security.
“We know that the PRC has a voracious appetite to get its hands on as much information about Americans as possible, and that creates a potent weapon here because the PRC could command that ByteDance comply with any request it gives to obtain that data that’s in the hands of the U.S. subsidiary,” she said.
That country is a “sophisticated adversary nation … [that] can create some kind of false flag operation and actually promote anti-China content, not to dictate how Americans should think about things but simply to create some trumped-up justification for a military or economic action,” she said.
It is unclear when the Supreme Court will issue a ruling in the case.
