Supreme Court justices signal skepticism over TikTok's effort to avoid ban

U.S. Supreme Court justices on Friday questioned why they should intervene to block a law forcing the sale of TikTok in nine days, saying the short-form video platform’s Chinese parent company does not enjoy First Amendment rights.

Lawyers for TikTok’s parent company, ByteDance, and a group of the platform’s users faced sharp questions from justices on both sides of the court’s ideological split about how any party other than ByteDance would have its rights restricted.

Under the bipartisan law passed by Congress and signed into law by President Joe Biden, ByteDance must divest TikTok by Jan. 19 or the wildly popular platform will be banned from app stores in the United States.

ByteDance holds the intellectual property rights to the algorithm that powers what content TikTok users see. If severed from the parent company, as required by the law, TikTok would lose access to the proprietary algorithm, which the company argued was a form of speech.

But the justices suggested only ByteDance — which, as a foreign company, they said, does not have the presumption of First Amendment rights — would be the only party directly harmed by the law.

The law targets ownership and potential control of the platform, including access to user data, by the Chinese Communist Party, Chief Justice John Roberts said. The law designates the Chinese government a foreign adversary.

“Congress doesn’t care about what’s on TikTok, they don’t care about the expression,” Roberts, a member of the court’s conservative majority, said. “That’s shown by the remedy: They’re not saying, ‘TikTok has to stop.’ They’re saying, ‘The Chinese have to stop controlling TikTok,’ so it’s not a direct burden on the expression at all.”

Lawmakers when the law was debated said the platform was dangerous because ByteDance is subject to Chinese national security laws that can compel companies to hand over data at any time.

“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Roberts said.

Justice Elena Kagan, who was appointed by Democratic President Barack Obama, also noted the law would mainly affect ByteDance, not its U.S.-based subsidiary. Separated from its Chinese parent company, TikTok would be free to pursue its own algorithm to compete with Meta’s Instagram and other video-based social media, she said.

“The statute only says to this foreign company, ‘Divest or else,’ and leaves TikTok with the ability to do what every other actor in the United States can do, which is go find the best available algorithm,” Kagan said.

National security vs. free speech

Noel Francisco, who represented TikTok and ByteDance, argued that the law’s true aim was to stop “manipulation of content” by the Chinese government, which he said amounted to censorship in violation of the Constitution.

“The government’s real target, rather, is the speech itself, it’s fear that Americans, even if fully informed, could be persuaded by Chinese misinformation,” Francisco said. “That, however, is a decision that the First Amendment leaves to the people.”

The law burdens TikTok’s speech, Francisco said, “shutting down one of the largest speech platforms in America” that boasts about 170 million U.S. users.

He asked the court to analyze if that burden on speech was “content-based,” which he reasoned it was, noting the government’s national security argument speculated that TikTok could be used to misinform Americans.

The singling out of TikTok presents a particular problem, he said.

The law “says there’s one speaker we’re particularly concerned about, and we’re going to hammer home on that one speaker,” he said. “One of the reasons they’re targeting that speaker is because they’re worried about the future content on that platform — that it could, in the future, somehow be critical of the United States or undermine democracy.”

Jeffrey Fisher, an attorney for TikTok creators, said a law to prevent content manipulation — the government’s argument that TikTok users were vulnerable to being force-fed content approved by China — was not permitted by the First Amendment.

“That argument is that our national security is implicated if the content on TikTok is anti-democracy, undermines trust in our leaders — they use various phrases like that in their brief,” Fisher said. “That is an impermissible government interest that taints the entire act. … Once you have an impermissible motive like that, the law is unconstitutional.”

TikTok lawyers react

Lawyers for TikTok and several creators expressed confidence in their case following the arguments.

“We thought that the argument went very well, the justices are extremely engaged. They fully understand the importance of this case, not only for the American citizens of this country, but for First Amendment law, generally, the rights of everybody,” Francisco said at the National Press Club Friday afternoon.

Francisco also defended the ownership makeup of ByteDance as a company incorporated in the Cayman Islands that “is not owned by China” — though 21% is owned by a Chinese national who lives in Singapore, he said. Francisco also said TikTok’s source code for the algorithm is stored on servers in Virginia.

Three TikTok users shared stories about the livelihoods they’ve built through their presence on the platform.

Chloe Joy Sexton of Memphis, Tennessee, said TikTok allowed her to jump-start her baking business after a job loss and difficult family circumstances.

“I have now shipped thousands of cookies all over the world and even published a cookbook. As a small business without a lot of capital, I rely almost entirely on TikTok to market my products. To say TikTok changed my life is an understatement,” Sexton said.