The US Supreme Court seems poised to support a ban on TikTok in the United States
On Friday, the Supreme Court appeared inclined to uphold a law requiring the sale or ban of the popular short-video app TikTok in the United States by January 19. The justices focused primarily on national security concerns involving China, which spurred the legislative crackdown.
During roughly 2.5 hours of oral arguments, the nine justices questioned attorneys for TikTok, its Chinese parent company ByteDance, and app users about the potential risks of the Chinese government exploiting the platform for espionage and covert influence campaigns. At the same time, the court also addressed concerns about free speech. Chief Justice John Roberts asked Noel Francisco, representing TikTok and ByteDance, "Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?"
The case stems from a lawsuit by TikTok, ByteDance, and users challenging a law passed with bipartisan support and signed by outgoing President Joe Biden. The plaintiffs argue the law violates the First Amendment's protection of free speech. However, a lower court upheld the legislation. While some justices expressed concern about the law’s implications for free speech, the predominant focus remained on national security threats posed by a foreign-owned social media platform with access to data from approximately 170 million Americans—nearly half of the U.S. population.
Justice Brett Kavanaugh raised long-term concerns, suggesting that China could use TikTok to gather information on young users and leverage it in the future for espionage, blackmail, or recruitment. "That information could be used over time to develop spies, turn people, or blackmail individuals who, a generation from now, will work in the FBI, CIA, or State Department," Kavanaugh said.
The Supreme Court is considering the case amidst escalating trade tensions between the United States and China. Incoming President Donald Trump, who begins his second term on January 20, opposes the ban. On December 27, Trump urged the court to delay the January 19 divestiture deadline, allowing his administration to seek a political resolution.
TikTok's lawyer, Francisco, emphasized that the app is one of the most popular platforms for American speech and would effectively shut down without a divestiture. He argued that the law primarily targets speech, driven by fears that Americans might be influenced by Chinese misinformation. He asked the court to pause the law, citing Trump's intention to revisit the matter.
Justice Samuel Alito suggested the possibility of an administrative stay to temporarily halt the law while the justices deliberate. Meanwhile, Justice Elena Kagan raised a Cold War-inspired hypothetical, comparing the law to Congress potentially forcing the American Communist Party in the 1950s to sever ties with the Soviet Union.
Addressing Justice Amy Coney Barrett, Francisco estimated that divesting TikTok could take "many years." He also presented a hypothetical scenario where Congress could not force Jeff Bezos to sell the Washington Post even under duress from the Chinese government. "Congress couldn't mandate a sale or shutdown because it would infringe on Bezos' and the Post's rights," Francisco argued.
U.S. Solicitor General Elizabeth Prelogar defended the law, highlighting the national security risks of Chinese control over TikTok. She argued that the app’s vast data on American users could be weaponized by China for espionage or influence operations. Prelogar pointed to a longstanding precedent of restricting foreign control over U.S. communication channels and critical infrastructure, asserting that the First Amendment does not prevent Congress from protecting Americans and their data.
Responding to Justice Clarence Thomas, Francisco claimed that TikTok’s algorithm, which tailors content to individual users, constitutes protected speech. "The law directly burdens TikTok’s speech by prohibiting its algorithmic operations unless ByteDance executes a qualified divestiture," Francisco said.
