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The Supreme Court heard oral arguments on the case on Friday The future of TikTok In the United States, and a law that could effectively ban the popular app as soon as next week.
The Protecting Americans from Applications Controlled by Foreign Adversaries Act the goals TikTok and will impose stiff civil penalties on app “entities” that run the service after the January 19 deadline. Among the various issues the justices considered was whether the law violates the Constitution’s protections for freedom of expression.
During the more than two-hour hearing, the judges repeatedly questioned TikTok’s lead lawyer about the social media platform’s ties to the People’s Republic of China. And he generally seemed unconvinced by TikTok’s main argument, that the law violates the free speech rights of millions of individual users in the United States.
Still, questions remain about the president-elect Donald TrumpWillingness to enforce the law when he takes office, one day after it takes effect. If Trump chooses not to enforce the violations, third-party service providers are welcome the apple and google will face a dilemma: whether to follow the letter of the law or rely on assurances from the new administration that they can effectively ignore.
Gautam Hans, a law professor at Cornell University, said in a statement that “the court’s agreement to allow the ban to go into effect seems correct.”
“The credulity with which many judges treat this law, which clearly implicates free speech rights for undervalued national security reasons, remains deplorable,” Hans said.
The TikTok argument
US Attorney General Noel Francisco opened the hearing in President-elect Donald Trump’s first term as TikTok’s legal representative. He echoed Trump’s wish to stop the effective ban by the courtsTo give Trump time to find one political resolution TikTok’s national security concerns.
The justices asked Francisco questions about his ties to China’s ByteDance, which owns the social media service TikTok, and argued that TikTok’s First Amendment rights are unconstitutional.
Much of the court’s line of inquiry focused on TikTok’s ownership structure. When Justice Samuel Alito asked Francisco if he would make the same argument if TikTok were directly owned by the Chinese government, TikTok’s lawyer said he would not.
But Francisco also stressed that Beijing is not forcing TikTok to make content decisions.
“We absolutely oppose any manipulation of content by China,” Francisco said. Court observers were careful to note that he used the word “resist,” for example, rather than “reject.”
O’Melveny & Myers special counsel Jeffrey Fisher argued on behalf of the TikTok content creators who are challenging the law.
In the interests of national security, “Congress can prohibit Americans from … associating with terrorist organizations,” Fisher said. But “the government has not stepped in and said ‘national security’ and the case is over.”
“You have to dig deeper into what the national security claim is,” Fisher said.
The case of the government
So far much of the argument in favor of the TikTok divestment law has been the claim that TikTok poses a threat to national security. That was the heart of US Attorney General Elizabeth Prelogar’s argument.
Americans who use TikTok may think they’re “talking to each other,” Prelogar said. But in reality, “the PRC, an adversary foreign nation, is exploiting a weakness in the system.”
Justices pressed Prelogar on how TikTok differs from other foreign outlets, such as Politico and Oxford University Press.
“China is an adversarial foreign nation that seeks every opportunity to undermine the United States,” he said. “If he has control over TikTok, it’s hard to see exactly how he will use that as a tool to harm our interests.”
“But we know he’s going to try,” Prelogar said.
“What we’re trying to avoid is not the specific issue, the specific viewpoints, but the technical ability of an adversary foreign nation to use a communication channel,” Prelogar said.
As for whether the Trump administration could extend the deadline before the law goes into effect, Prelogar said the US government has not yet taken a position on it.
“We haven’t run it into the ground, in part, because it’s simply not presented here,” Prelogar said.
Trump will be inaugurated on January 20, and the divestment period will end on January 19.
Whether President-elect Trump might decide not to enforce the law, Prelogar said that “raises a tricky question.”
It is unclear when the court will rule, and if China’s ByteDance continues to refuse to take down an American company TikTok, it faces a full nationwide ban.
What are the possible effects on users?
TikTok’s 115 million monthly active users in the US could face several scenarios depending on what the Supreme Court rules.
If no word is received before the law goes into effect on January 19th and the ban passes, users may be able to post or engage with the app if they’ve already downloaded it. However, those users would not be able to update or download the app after that date, according to several legal experts.
The thousands of video creators who generate revenue on TikTok through ad revenue, paid partnerships, merchandise, and more will likely have to move their businesses to other platforms, like YouTube or Instagram.
“Shutting down TikTok, even for one day, would be a big deal, not just for the people who create content on TikTok, but for everyone who shares or views the content,” said George Wang, staff attorney at the Knight First Amendment Institute. He helped write amicus briefs on the institute’s case.
“It sets a really dangerous precedent for how we regulate speech online,” Wang said.
What comes next?
It is not clear when the Supreme Court will rule, but the expedited hearing of the case suggests that the court may issue a quick ruling.
The case will have “tremendous consequences” because TikTok’s US user base is so large, said Berkeley Law Dean Erwin Chemerinsky.
“It is unprecedented for the government to ban speech platforms, especially those used by many people,” Chemerinsky said. “Ultimately, it is the tension between the problems of freedom of expression, on the one hand, and the claims of national security, on the other.”
“There are good reasons to be concerned about privacy and data collection,” said Cornell’s Hans.
“But this law specifically targets one platform that we should all be concerned about whether future government action could affect other speech platforms.”
SEE: It looks like TikTok might actually shut down, says Jim Cramer
