WASHINGTON − Some of the 170 million Americans who use TikTok to sell cookies, promote books by Black authors, comment on sports, advocate for sexual assault survivors and more say the stakes couldn’t be higher when the Supreme Court on Friday debates the fate of the wildly popular short-form video app.
The court has rarely, if ever, confronted a free speech case that matters to so many people, lawyers for TikTok content creators told the justices in a filing.
The TikTok users said they will lose the most powerful mechanism available to make their voices heard unless the high court blocks a federal law requiring TikTok break its ties with the Chinese government or be banned in the U.S. on Jan. 19.
Yet, court watchers are doubtful the justices will overturn a lower court’s decision upholding the law.
That unanimous ruling was made by judges appointed to the bench by both Republican and Democratic presidents. And their agreement across ideological lines echoes the law’s broad bipartisan support in Congress.
Plus, the national security justifications for the law are likely to be persuasive to the justices, said Gautam Hans, a Cornell Law School professor and associate director of the school’s First Amendment Clinic.
“They are fairly reluctant to second guess the decisions of the political branches on that weighty topic,” said Hans, who signed onto a brief supporting TikTok but isn’t optimistic the free speech concerns will win out.
The government warns that unless TikTok is divested from ByteDance, its Chinese-based parent company, China can gather data on Americans or manipulate the content on TikTok to shape U.S. opinion.
President-elect Donald Trump has muddied the executive and legislative branches’ united backing of the law by asking the court to pause it until he has a chance to find another solution after taking office on Jan. 20.
But legal experts, as well as the Justice Department – which encouraged the Supreme Court to ignore Trump’s request – said the president-elect doesn’t have a persuasive legal argument for putting the law on hold.
The court has already deferred deciding – until after arguments are made in person – TikTok’s request that the law’s Jan. 19 deadline be paused. It’s a sign that a majority of the justices don’t think TikTok will be able to successfully argue that the law is unconstitutional, said Saurabh Vishnubhakat, a professor at Cardozo School of Law.
“I think TikTok has an uphill battle coming into the argument,” he said.
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The court, which is hearing the case on an extremely expedited basis, could issue a decision soon after Friday’s arguments.
In written filings previewing the case, the two sides disagree on whether freedom of expression is at stake, if there are other ways to address the national security concerns and whether those concerns are legitimate.
Here’s a look at their differences.
The Justice Department argues the law doesn’t infringe on freedom of expression because it targets TikTok’s control by a foreign adversary, not speech protected by the 1st Amendment.
Congress’ goal of protecting Americans’ data from being misused by China has nothing to do with expression, the department wrote in a filing. And the goal of preventing China from using TikTok to shape U.S. opinion or spread disinformation doesn’t violate the Constitution because “a foreign sovereign has no First Amendment right to covertly manipulate a U.S. platform.”
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Lawyers for TikTok’s content providers say they have a 1st Amendment right to speak to other Americans with the help of a foreign publisher. Their use of TikTok, they said is no different from an actor making a movie with a foreign director or an author putting out a book with a British publisher.
Banning TikTok unless it takes on a new owner “plainly imposes a burden on the free flow of ideas,” the lawyers wrote. Even under a new owner, they said, TikTok would lose its distinct look and feel.
Even if the justices agree that the law infringes on free speech rights, they can uphold it if they find that it’s narrowly tailored to achieve an important goal.
TikTok argues the “time-tested, least-restrictive” way to address concerns about content manipulation is to require a disclosure warning to users. For the data concerns, the government could prohibit TikTok from sharing sensitive user data with a foreign adversary. That could be enforced by the Federal Trade Commission using heavy fines, lawyers for TikTok users wrote.
The Justice Department counters that they won’t be able to detect a data breach until it’s too late.
“The Chinese government has a documented history of collecting data through hacking operations that violate U.S. laws,” Solicitor General Elizabeth Prelogar told the court. “The First Amendment doesn’t require the government to rely on a potential agreement with a party that it doesn’t trust.”
She also said a generic disclosure to TikTok users about the risks of content manipulation by China would be “patently ineffective.”
TikTok says the government has yet to prove that there’s a significant national security risk that needs to be addressed.
The Justice Department is overstating China’s interest in TikTok’s data and understating the company’s ability to protect itself from foreign influence, TikTok’s lawyers told the court.
In fact, they said, the government has conceded it has no evidence of wrongdoing and has made “no effort to explain why this dog has never barked.”
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The Justice Department said China pre-positions “ostensibly private companies subject to its control” in other countries so it can deploy them at opportune moments.
As long as TikTok can be controlled by a foreign adversary, the government argues, its reams of data about Americans remains a powerful tool for espionage, and TikTok’s role as a key channel of communication makes it a potent weapon for covert influence operations.
China, the Justice Department said, “could use those weapons against the United States at any time.”
