The Supreme Court doesn’t seem likely to save TikTok

On Friday, the Supreme Court heard oral arguments in a case that will decide if the popular social media app TikTok can still exist in the United States once a law that effectively bans the app goes into effect January 19. After the arguments, it’s not looking good for TikTok fans.

The first two-thirds of Friday’s argument in TikTok v. Garland were about as lopsided as any court hearing can be. The justices grilled two lawyers arguing that TikTok should be allowed to continue to operate, because the federal law banning it violates the First Amendment.

At the heart of the case is the fact that TikTok is owned by ByteDance, a company based in China, a US adversary. Last year, a federal law was enacted that effectively bans TikTok in the United States unless the company is sold to a new owner — one that cannot be controlled by the Chinese government (or by some other foreign adversary). According to TikTok’s legal team, the law would force TikTok to “go dark” in the United States on January 19, and that shutdown violates Americans’ right to freedom of speech.

By the time the two lawyers arguing against the ban — Noel Francisco who represents TikTok, and Jeffrey Fisher who represents a group of TikTok users — took their seats, it appeared likely that all nine justices would vote unanimously to uphold the ban.

That said, the picture grew more nuanced after US Solicitor General Elizabeth Prelogar stood up to defend the ban. Many of the justices seemed skeptical of Prelogar’s most aggressive legal arguments, which suggest that a law that shuts down a forum that tens of millions of Americans use to engage in free speech does not implicate the First Amendment at all. And some of them, particularly Justices Samuel Alito and Neil Gorsuch, expressed idiosyncratic concerns, which suggest they may ultimately side with TikTok.

Still, Francisco and Fisher’s time at the podium went so badly that it is hard to see TikTok prevailing — all nine of the justices took turns grilling these lawyers with questions that cut at the core of Francisco and Fisher’s arguments. It is likely that many of the skeptical questions Prelogar faced, by contrast, were driven by concerns about overreaching in a decision ruling in TikTok’s favor, rather than by a desire to see TikTok prevail.

Broadly speaking, the TikTok case pits two well-established legal rules against each other. As a general rule, the government does not get to decide who owns media companies: If the government had this power, it could force every newspaper and other media outlet in the country to sell itself to one of President-elect Donald Trump’s allies, effectively eliminating the free press.

That said, the government has long forbade foreign nationals from controlling key communications infrastructure in the United States. This practice stretches at least as far back as the Radio Act of 1912, which only permitted US companies and citizens to obtain a license to operate a radio station.

Based on Friday’s argument, it is likely that this second principle — the principle that permits the government to prevent foreign nations from controlling US communications infrastructure — will prevail.

The Court is likely to rule against TikTok, but it isn’t quite sure how to do so

Broadly speaking, the justices expressed three different reasons why the Court might uphold the TikTok ban at the heart of this case.

One of those arguments is grounded in the government’s long history of locking foreign nationals out of ownership of US communications infrastructure. Justice Brett Kavanaugh, in particular, pointed to this “long tradition,” which began more than a century ago, and that remains part of US law today.

Current law, for example, prohibits “any foreign government or the representative thereof” from having a radio station license, and it broadly bars noncitizens and companies with significant foreign ownership from controlling those stations. The TikTok case applies the principle that foreign nationals can be barred from controlling key communications infrastructure to a new context — a social media app instead of a radio station —but the basic principle remains the same.

A second argument, pressed by several justices and particularly by Chief Justice John Roberts, is that the TikTok ban is lawful because Congress wasn’t really motivated by a desire to restrict speech. In Roberts’s words, Congress was “not concerned about the content” that appears on TikTok, it was “concerned about what the foreign adversary is doing.”

It is true, of course, that a law that effectively shuts down a social media platform will quiet TikTok’s approximately 170 million US users, but this result is incidental to the government’s true purpose, which lawmakers explicitly stated is preventing the Chinese government from collecting data on Americans and from manipulating what content they see. Lawmakers who supported the bill were clear that they see TikTok as a national security threat.

It’s also likely that these users would only be temporarily prevented from posting videos online, because ByteDance could later sell TikTok to a US company. At one point, in response to a question by Justice Amy Coney Barrett, Prelogar noted that even if TikTok is shut down on January 19, it could come back to life at some future date after ByteDance sells the company to someone else. Meanwhile, several competitors already provide essentially the same service.

Finally, Justice Ketanji Brown Jackson raised a third argument against TikTok’s position. She argued that the law at issue in the case isn’t really about speech at all. Rather, it is about TikTok’s “right of association” with a China-based company. The First Amendment often protects a right to associate with whoever we chose to be associated with, just as it protects free speech. But, as Jackson noted, the Court has permitted laws that prohibit Americans from associating with terrorist organizations and foreign adversaries. 

She pointed, in particular, to Holder v. Humanitarian Law Project (2010), which upheld a ban on providing “material support or resources” to certain foreign terrorist organizations, even when an American merely wants to train members of those organizations “on how to use humanitarian and international law to peacefully resolve disputes.” So, if Congress can ban Americans or US companies from associating with a foreign terrorist organization, why can’t it also ban Americans from associating with a company that can be controlled by an adversarial foreign government?

Based on Friday’s argument, it is unclear which of these three arguments — or perhaps which combination of them — will be showcased in the Court’s ultimate opinion. Still, the justices appeared sufficiently skeptical of TikTok’s legal position that it seems unlikely that the company will prevail.

Several of the justices also appeared worried about handing down a too-broad decision

Though the Court is likely to uphold the TikTok ban, many of the justices also appeared worried that their opinion could harm Americans’ free speech rights if it is not carefully crafted. Justice Elena Kagan, for example, pressed Prelogar on how she can square her arguments in the case with the Court’s previous decisions protecting the free speech rights of communists.

As Kagan noted, the government often targeted the Communist Party in the United States due to concerns that it was part of a broader Communist International movement and even took direction from the Soviet Union. Yet these ties to a foreign adversary were not sufficient to justify restricting communist speech.

Several justices also seemed concerned that some of Prelogar’s most aggressive arguments went too far. At one point in her brief, for example, Prelogar argued that the First Amendment simply does not apply at all to this case, because ByteDance is a foreign corporation and foreign companies are not protected by the First Amendment. Elsewhere, she argued that the Court should only apply a diminished level of scrutiny to the TikTok ban because the law is “content neutral.”

Many of the justices took issue with this content neutrality claim. As Alito noted, a law that says “Joe can’t talk anymore” targets Joe because of the content of his speech. So why doesn’t a law which effectively says that ByteDance can’t operate a media outlet in the US also engage in content discrimination?

As Jackson put it, the whole point of requiring ByteDance to divest from TikTok is that, in some instances, the government thinks that TikTok will promote different content if it has a different owner.

That said, the fact that the justices seemed to reject Prelogar’s most sweeping arguments does not necessarily mean the government will lose. Broadly speaking, in constitutional cases like this one, courts begin by asking which “level of scrutiny” should apply to a law. 

Laws that encroach on core constitutional rights are typically subject to “strict scrutiny,” which means that the law must be as narrowly crafted as possible in order to advance a “compelling” goal. Most laws subject to this test are struck down. Laws that don’t really touch upon constitutional rights at all are almost always upheld. And laws that fall somewhere in the middle are subject to “intermediate scrutiny,” which functions similarly to strict scrutiny but also gives the government a little more leeway to operate.

Without diving too deep into the weeds of these tiers of scrutiny, a topic that is typically covered over several weeks in any law student’s introductory constitutional law class, it’s worth noting that the federal appeals court that heard the case ruled that the TikTok ban would even survive strict scrutiny — in part because the government’s interest in preventing China from collecting data on tens of millions of Americans is so compelling.

So, while the justices did hit Prelogar with several tough questions, these questions may have been intended to probe which level of scrutiny they should apply in their opinion — and not whether they should ultimately uphold the law.

All of this said, it is always risky to predict the outcome of a Supreme Court case based solely on the justices’ comments at oral argument. So it is possible that TikTok will somehow assemble five votes to strike down the law at issue in this case.

But that outcome does not seem likely. It is more likely that, come January 19, TikTok will go dark in the United States.