Supreme Court considers putting TikTok on the chopping block
The clock is ticking for TikTok in the United States. Later this week, however, the social media application and some of its content creators still have time to make their case to the U.S. Supreme Court against a federal statute that threatens to banish TikTok on Jan. 19. (Image from Shutterstock)
The clock is ticking for TikTok in the United States. In the U.S. Supreme Court later this week, however, the social media application and some of its content creators still have time to make their case against a federal statute that threatens to banish TikTok on Jan. 19.
The immensely popular app known for its short-form viral videos, which has 170 million monthly users in the United States, faces the deadline under the 2024 federal law to be acquired by a U.S. owner or else be removed from distribution platforms.
A bipartisan majority in Congress passed the law last year amid concerns that TikTok’s parent company, ByteDance Ltd., is controlled by China and the app poses a grave risk that the app’s content can be manipulated and Americans’ data can be accessed.
In December, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Foreign Adversary Controlled Applications Act against a First Amendment challenge brought by TikTok, ByteDance and the group of TikTok content creators. The U.S. Supreme Court on Dec. 18 agreed to hear arguments in TikTok v. Garland before the looming statutory deadline.
The court has scheduled two hours of arguments on Friday, Jan. 10, about the thorny issues in the case. It may test the attention span of the TikTok generation, for those who have even been paying attention.
“There has been a remarkable lack of awareness among TikTok users of the fact that the platform could just go dark in a matter of days,” says Ashutosh Bhagwat, a law professor and First Amendment expert at the University of California, Davis.
TikTok creators highlight its reach and impact
TikTok and ByteDance tell the high court that the platform “is one of the nation’s most important venues for communication” about politics, arts and commerce.
The federal government has “ordered its shutdown … partly based on the fear that the platform’s American publisher could be indirectly pressured by China to alter the mix of ‘content’ to influence American minds,” the companies say in their brief. “That justification is at war with the First Amendment.”
The TikTok content creators argue in a separate brief that “this is not a case where the asserted national-security concerns involve an imminent threat of terrorism, much less the risk of starting or affecting a war. Rather, the government’s stated concern—that TikTok might someday be used to build support for some future policy change or protest movement—is precisely the sort of justification for barring speech that history and precedent do not permit.”
The creators include a rancher who uses the app to teach about agricultural issues; a promoter of Black authors and Black-owned businesses; and a former health care administrator who now makes his living posting LGBTQ-friendly humor.
“I have not had anywhere near the same success on other social media platforms like Instagram, Facebook or YouTube,” Steven King, the LGBTQ humorist, said in a court declaration. “If TikTok is banned in the United States, I would immediately lose the career and community that I have worked so hard to build and would probably have to go back to working in healthcare administration.”
Bhagwat, who joined an amicus brief of First Amendment and internet law professors in support of TikTok, says that “sometimes national security concerns can trump the First Amendment. But there is a long history in this country of the government exaggerating national security concerns to suppress speech it didn’t like.”
Solicitor general: Restrictions are on foreign control, not speech
U.S. Solicitor General Elizabeth B. Prelogar, defending the statute on behalf of President Joe Biden’s administration, told the court “TikTok collects vast swaths of data about tens of millions of Americans, which the [People’s Republic of China] could use for espionage or blackmail. And the PRC could covertly manipulate the platform to advance its geopolitical interests and harm the United States—by, for example, sowing discord and disinformation during a crisis.”
Congress did not impose any restriction on speech with the law, Prelogar argues, “much less one based on viewpoint or content.”
“Instead, Congress restricted only foreign adversary control,” she added. “TikTok may continue operating in the United States and presenting the same content from the same users in the same manner if its current owner executes a divestiture that frees the platform from the PRC’s control.”
Zephyr Teachout, a law professor at Fordham University who has joined an amicus in support of the statute, argues that the federal law has long barred foreign ownership of communications companies and infrastructure, and the TikTok law fits within that tradition.
“Most people don’t understand this is about the ownership [of TikTok] and not the app itself,” she says. “This is the wrong vehicle to be deciding the expressive rights of social media.”
Jamil N. Jaffer, an associate professor and director of the National Security Institute at Antonin Scalia Law School at George Mason University, says Congress and the D.C. Circuit were correct to conclude that the Chinese government’s control of TikTok presents a serious national security threat because the app provides sensitive personal data and gives the Chinese Communist Party a way to influence information shared to TikTok users.
“Every national security leader in the government across multiple administrations of different parties says TikTok is a Chinese-controlled platform,” says Jaffer, a former associate counsel to President George W. Bush and a former chief counsel to the Senate Foreign Relations Committee. He joined a brief in support of the law, signed by a bipartisan group of former national security officials.
“The idea we would allow the Chinese Communist Party to both collect massive amounts of data on nearly half the U.S. population and curate the content they see is just crazy,” says Jaffer.
TikTok and ByteDance tell the court that the American app is a U.S.-based company that controls the platform and key aspects of the algorithm.
“No arm of the Chinese government has an ownership stake—directly or indirectly—in TikTok Inc. or ByteDance Ltd.,” the companies’ brief says. “To provide assurance that the Chinese government can exercise no influence over the U.S. platform, TikTok Inc.’s U.S. employees, subsidiaries and contractors control it.”
Prelogar emphasizes that ByteDance’s algorithm for all worldwide versions of TikTok, which is widely regarded as the secret sauce for the app’s addictive nature, is engineered and stored in China. She cites the D.C. Circuit’s conclusion that China “maintains a powerful Chinese Communist Party committee embedded in ByteDance through which it can exert its will on the company.”
A brief from a certain ‘consummate’ dealmaker
One big question is what happens after Jan. 19 if the court declines to block the federal statute. Former President Donald J. Trump, who will return to office the next day, has some thoughts, which his lawyer shared with the Supreme Court in the form of an amicus brief.
The brief declines to take a position on whether the federal law violates the First Amendment, but it stresses that Trump upon his return to the presidency will have unique interests in both the national security and free speech questions raised by the statute.
“President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office,” notes the brief, which sidesteps the fact that during his first term Trump embraced restrictions on TikTok and ByteDance.
“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government,” says Trump’s amicus, filed by D. John Sauer, who is the incoming president’s pick to become U.S. solicitor general.
Some legal observers were astounded by what they suggested was the audaciousness of the Trump filing. The brief “asks the Supreme Court to do something it just … can’t do,” Georgetown University Law Center Professor Steven Vladeck wrote on his Substack site.
Prelogar, in her Jan. 3 reply brief, says the relief sought by Trump “is more properly characterized as a temporary injunction” that isn’t appropriate in the case’s current posture.
Some observers believe Trump could act, or decline to act, in ways that would allow TikTok to remain operating without major disruption. The federal statute has a provision that allows the president to grant a 90-day extension of the effective date, but that is supposed to apply only if ByteDance is making progress towards divestiture of TikTok, and there is little sign of that.
“He could also say to the world, ‘I don’t intend to enforce it, or at least impose any penalties’ or say that his conversations with TikTok leadership lead him to believe a deal may be progressing.” Jaffer says. “He may make some decisions that take this off the table.”
See also:
TikTok asks SCOTUS to block law that would shut down app
Supreme Court will decide whether TikTok ban violates the First Amendment
