WASHINGTON – Supreme Court on Friday seemed likely to uphold the ban law TikTok in the United States on January 19, unless the popular social media program is sold by its China-based parent company.
Hearing arguments in a momentous clash of free speech and national security concerns, the justices seemed convinced by arguments that the national security threat posed by the company’s ties to China outweighed concerns about restricting speech by TikTok or its 170 million users in the United States.
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At the beginning of the argument, which lasted more than two and a half hours, Supreme Court Chief Justice John Roberts described the case’s ownership of TikTok by the Chinese company ByteDance and the requirement for the parent company to cooperate with the Chinese government’s intelligence operations as the “central concerns.”
If left in force, the bill, passed by a bipartisan majority in Congress and signed by President Joe Biden in April, would require TikTok to “sunset” on Jan. 19, lawyer Noel Francisco told the justices on TikTok’s behalf.
Francisco urged the judges to be given at least a fleeting break that would allow TikTok to continue operating. “We may be in a different world again” after President-elect Donald Trump takes office on January 20. Trump, who has 14.7 million followers on TikTok, also called for a postponement to give him time to negotiate a deal for a “political solution.”
However, it was unclear whether any of the judges would have chosen this course. And only Justice Neil Gorsuch sounded like he would side with TikTok if he found the ban violated the Constitution.
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Gorsuch called the arguments made by the Biden administration in defense of the law “a paternalistic point of view.” He said TikTok offered to post a warning that the Chinese government could manipulate content.
“Don’t we usually assume that the best remedy for problematic speech is counter-speech?” he asked Attorney General Elizabeth Prelogar, who defended the law on behalf of the Biden administration
Prelogar said the warning would not be enough to offset the spread of misinformation.
However, Francisco and attorney Jeffrey Fisher, who represents content creators and TikTok users, faced much more skeptical questions from all the other judges.
Justice Brett Kavanaugh focused on U.S. concerns about China’s access to information about tens of millions of Americans, especially teenagers and people in their 20s, among whom TikTok is extremely popular.
“It seems to raise enormous concerns about the future of the country,” said Kavanaugh, whose daughters are in that age range.
Roberts downplayed Fisher’s argument that the TikTok ban violates American users’ free speech rights. “Congress has no objection to that designation,” Roberts said. “They are not comfortable with a foreign adversary, as they determined by collecting all the information on the 170 million people who use TikTok.”
Justices are expected to act within days, almost certainly before the Jan. 19 deadline.
Content creators and tiny business owners who apply the app are anxiously awaiting the decision.
“There’s really no substitute for this application,” said Skip Chapman, co-owner of KAFX Body in Manasquan, New Jersey, a manufacturer and marketer of natural deodorants. Chapman said more than 80% of his sales are on TikTok and he hasn’t found the same interest on Amazon or other platforms.
Lee Zavorskas, a TikTok creator and licensed esthetician from New Hampshire, said she makes almost half of her income on the platform by promoting other companies’ products. Zavorskas said it was too stressful for her to listen to Friday’s arguments. Instead, she spent time building a YouTube channel.
ByteDance said it would not sell the low video platform. But some investors, including Trump, are watching Former Treasury Secretary Steven Mnuchi nor a billionaire businessman Frank McCourt. On Thursday, McCourt’s Project Liberty initiative said it and its unnamed partners had presented ByteDance with a proposal to acquire TikTok’s U.S. assets. The consortium, which includes “Shark Tank” host Kevin O’Leary, did not disclose financial terms of the offer.
If TikTok isn’t sold to an approved buyer, federal law prohibits app stores like those operated by Apple and Google from offering the popular app. It would also block web hosting services from hosting TikTok.
TikTok users who already have the app on their phones will still have access to it. However, up-to-date users will not be able to download the app and existing users will no longer be able to receive updates. The Department of Justice said in a lawsuit that the app would eventually stop working.
Prelogar said that a possible sale of the platform, even after the ban, would allow TikTok to resume operations. The sale of Twitter to Elon Musk, who changed its name to X, shows that the sale of the social media platform can happen quickly, she added.
She said the high-profile deal was completed in about six months from offer to completion.
Meanwhile, TikTok was “on notice” from 2020, during Trump’s first term, that its sale might be necessary if it could not satisfy the US government’s national security concerns
The federal act was the culmination of a a long-running saga in Washington over TikTok, which the government sees them as a threat to national security due to connections with China.
U.S. officials argue that immense amounts of user data collected by TikTok, including sensitive information about browsing habits, could coercively fall into the hands of the Chinese government. They also fear that the proprietary algorithm that powers what users see on the app is vulnerable to manipulation by Chinese authorities, who could pressure ByteDance to shape content on the platform in ways that are complex to detect.
TikTok, which sued the government over the law last year, has long denied it could be used as a tool by Beijing.
The company negotiated with the Biden administration in 2021-2022 to address concerns about US data privacy and potential algorithmic manipulation. In court documents, he accused the administration of essentially walking away from those negotiations after presenting a draft agreement in August 2022. However, the Justice Department said the Biden administration found the proposal to be “insufficient” because it would maintain TikTok’s ties to China. The agency said the Enforcement Branch also “cannot trust ByteDance to comply with the regulations or detect noncompliance before it is too late.”
A three-judge panel, made up of two Republican nominees and one Democratic nominee, unanimously upheld the law in December, prompting TikTok’s quick appeal to the Supreme Court.
