On Friday, the Supreme Court heard oral arguments in a case that will decide whether the popular social media app TikTok will still exist in the United States when a law effectively banning the app takes effect on Jan. 19. Good for TikTok fans.
In the first two-thirds argument on Friday, Dr TikTok v. Garland Any court hearing was about as aloof as it could be. The judges grilled the two lawyers on arguments that TikTok should be allowed to continue operating, because federal laws banning it violate the First Amendment.
At the heart of the case is that TikTok is owned by ByteDance, a company based in China, a US counterparty. Last year, a federal law was enacted that effectively bans TikTok in the U.S. unless the company is sold to a new owner — one that the Chinese government (or any other foreign counterparty) cannot control. According to TikTok’s legal team, the law will force TikTok to “go dark” in the US on January 19, and the shutdown violates Americans’ free speech rights.
As 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 that all nine justices would vote unanimously to uphold the ban.
That said, the picture became more nuanced after US Solicitor General Elizabeth Preloger stood up for the ban. Many of the justices seemed skeptical of Prelogger’s most aggressive legal argument, which suggests that a law that shuts down a forum that millions of Americans use to engage in free speech does not implicate the First Amendment at all. And some of them, notably Justices Samuel Alito and Neil Gorsuch, have expressed extraordinary concerns, suggesting they may end up siding with TikTok.
Still, Francisco and Fisher’s time on stage was so poor that it’s hard to see TikTok prevailing — all nine justices took turns grilling the lawyers with questions that cut to the heart of Francisco and Fisher’s arguments. This was likely driven by concerns about over-reaching conclusions ruling in favor of TikTok, rather than a desire to see TikTok prevail, unlike the skeptical questions Prelogger faced.
Broadly speaking, tiktok The case pits two well-established legal principles against each other. As a general rule, the government cannot decide who owns media companies: if the government had this power, it could effectively force every newspaper and other media outlet in the country to sell itself to one of President-elect Donald Trump’s allies. Eliminate free press.
That said, the government has long prohibited foreign nationals from controlling key communications infrastructure in the United States. This practice stretches back at least as far as the Radio Act of 1912, which allowed only US companies and citizens to obtain a license to operate a radio station.
Based on Friday’s arguments, it’s likely that this second principle — the one that allows the government to prevent foreign countries from controlling U.S. communications infrastructure — will prevail.
The court could rule against TikTok, but it is not certain how to do so
Broadly speaking, the judges articulated three different reasons why the court could uphold the TikTok ban at the heart of the case.
One of those arguments is the basis for 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 is still part of US law today.
Current law, for example, prohibits “Any foreign government or its representativefrom having a radio station license, and it broadly prevents non-citizens and companies with significant foreign ownership from controlling those stations. D tiktok The case applies the principle that foreign nationals can be prevented from controlling key communications infrastructure in a new context — a social media app rather than a radio station — but the basic principle remains the same.
A second argument, pressed by several justices and especially Chief Justice John Roberts, is that the TikTok ban is valid because Congress was not truly motivated by a desire to restrict speech. According to Roberts, Congress wasn’t concerned about the content displayed on TikTok, it was “concerned about what foreign adversaries were doing.”
It’s certainly true that a law that effectively shuts down a social media platform would appease TikTok’s estimated 170 million US users, but that result is incidental to the government’s real objective, which lawmakers have made clear is preventing the Chinese government from collecting data. From focusing on Americans and what content they watch. Lawmakers who supported the bill were clear that they see TikTok as a national security threat.
It’s also likely that these users will only be temporarily barred from posting videos online, as ByteDance may later sell TikTok to a US company. At one point, in response to a question from Justice Amy Coney Barrett, Prelogger noted that while TikTok shut down on January 19, it could be revived at some future date after ByteDance sells the company to someone else. Meanwhile, several competitors already offer essentially the same service.
Finally, Justice Ketanji Brown Jackson presented a third argument against TikTok’s position. He argued that case law is not really about speech. Rather, it’s about TikTok’s “right of association” with a China-based company. The First Amendment often protects the right to associate with whom we choose to associate, just as it protects free speech. But, as Jackson points out, courts have allowed laws that prohibit Americans from associating with terrorist organizations and foreign adversaries.
He indicated, in particular, Holder v. Humanitarian Law Project (2010), which upholds a ban on providing “material support or resources” to certain foreign terrorist organizations, even when an American seeks only to train members of that organization “how to use humanitarian and international law to resolve conflicts peacefully.” So, if Congress can prohibit Americans or US companies from associating with a foreign terrorist organization, why can’t it prohibit Americans from associating with a company that may be controlled by an adversary foreign government?
Based on Friday’s arguments, it’s unclear which of those three arguments — or perhaps some combination of them — will appear in the court’s final opinion. Still, the judges appeared skeptical enough about TikTok’s legal standing that it seems unlikely the company will prevail.
Several judges were concerned about handing down a decision that was too broad
Although the court is likely to uphold the TikTok ban, many justices were also concerned that their opinion could harm Americans’ free speech rights if not carefully crafted. For example, Justice Elena Kagan pressed Prelogger on how she could square her arguments in this case with the court’s previous decisions protecting communists’ free speech rights.
As Kagan noted, the government often targeted the Communist Party in the United States because of concerns it was part of a larger communist international movement and even took direction from the Soviet Union. Yet these ties to a foreign counterpart were not enough to justify restricting communist speech.
Several justices also seemed concerned that some of Prelogger’s most aggressive arguments went too far. At one point in his brief, for example, the preamble argued that the First Amendment simply Not applicable in this caseBecause ByteDance is a foreign corporation and foreign companies are not protected by the First Amendment Elsewhere, he argued that the court should only apply a reduced level of TikTok ban because the law is “content neutral”.
Many judges took issue with this content neutrality claim. As Alito points out, a law that says “Joe can no longer speak” targets Joe because of the content of his speech. So why does a law that effectively says ByteDance cannot operate a media outlet in the US also involve content discrimination?
As Jackson says, the whole point of separating ByteDance from TikTok is that, in some cases, the government thinks that TikTok would promote different content if it had a different owner.
That said, just because the justices seem to have rejected Prelogger’s most obvious arguments doesn’t mean the government will lose. Broadly speaking, in such constitutional cases, courts begin by asking what “level of test” should be applied to the statute.
Laws that limit fundamental constitutional rights are generally subject to “strict scrutiny,” meaning that the law must be construed as narrowly as possible to advance an “essential” goal. Most laws subject to this test are struck down. Laws that do not actually touch constitutional rights are almost always upheld. And laws that fall somewhere in between are subject to “intermediate scrutiny,” which works like strict scrutiny but gives the government a bit more room to act.
Without getting into the weeds of these layers of inquiry, a topic that is usually covered for weeks in any law student’s introductory constitutional law class, it is worth noting that the federal appeals court that heard The ruling in the case said the TikTok ban would survive even strict scrutiny — because the government’s interest in preventing China from collecting data on millions of Americans is so compelling.
So, while the justices hit Prelogger with a number of tough questions, those questions may be intended to probe what level of scrutiny they should apply to their opinions — and whether they should ultimately uphold the law.
All this said, it is always risky to predict the outcome of a Supreme Court case based solely on the justices’ comments at oral arguments. So it’s possible that TikTok will muster five votes to strike down the law at issue in this case.
But that outcome does not seem likely. It is highly likely that TikTok will go dark in the US come January 19.
