The U.S. Supreme Court heard oral arguments Friday on whether the law banning TikTok is unconstitutional and violates the First Amendment rights of the 170 million Americans who use the social media platform.
Federal law mandates the sale or shutdown of TikTok by Jan. 19, less than two weeks from now, over national security concerns.
Noel Francisco, who represents TikTok and its Chinese parent company, ByteDance, and served as Trump’s solicitor general during his first term, began the arguments by stating that the ban singles out TikTok and its parent company for “uniquely harsh treatment.”
Congress enacted the law banning TikTok in April 2024. It cites concerns about national security and content manipulation.
TikTok’s legal team contends that the forced sale or ban infringes First Amendment rights, arguing that the platform serves as a medium for its 170 million users.
Francisco said that the government’s real target is speech itself, mentioning President Trump, saying the case could be moot after he takes office.
In a brief filed on Dec. 27, 2024, Trump’s legal team requested a postponement to allow his incoming administration to address the national security concerns through “political negotiations” rather than an outright ban.
During the session, several justices expressed skepticism about TikTok’s arguments that the law infringes on First Amendment rights. Chief Justice John Roberts highlighted congressional concerns over potential manipulation and date harvesting by the Chinese government, stating that the main problem is that the parent company, ByteDance, must cooperate with the Chinese government’s intelligence operations.
Francisco used Amazon boss Jeff Bezos and his newspaper, The Washington Post, as an example for his argument against the statement, saying that if China pressured the U.S. government to write the stories it wanted, it still wouldn’t be able to shut the post down.
“Surely, the government couldn’t come in and say, ‘Jeff Bezos, you need to either sell the Washington Post or shut it down,'” Francisco said. “That wouldn’t just violate Mr. Bezos First Amendment rights. That would also violate the Washington Post’s First Amendment rights.”
TikTok’s legal representative contended that the forced sale or ban, based on the government’s security concerns, is speculative, referencing TikTok’s ability to shut down the platform if pressured by the Chinese government.
Justice Neil Gorsuch asked if the sale of TikTok would be possible with more time. Francisco responded that it would be exceedingly difficult within any time frame, noting the technical challenges involved in the divestment from ByteDance.
Justice Elena Kagan said that the foreign-owned corporation doesn’t have First Amendment rights or U.S. protections.
Francisco argued that when used in the United States, it has First Amendment rights, like those using social media platforms.
During oral arguments, Justice Brett Kavanaugh held steady on the U.S. concerns over China’s access to its 170 million American users data, which he says is a huge concern for the country’s future.
If the Justices side against TikTok, Francisco said that the platform would go dark in the U.S. on Jan. 19. He says a preliminary injunction would make sense to “buy everybody a little breathing space,” which he says would make all the sense in the world.
Justice Amy Coney Barrett said that the platform only has to sell the app to avoid the ban and circled back to the ban being a third-party choice and the reason the law was passed initially, asking if the platform could potentially be recreated.
If TikTok was recreated, Francisco said it would be a “fundamentally different platform.”
The association between TikTok and ByteDance remained a focal point in arguments.
“I think what you are really complaining about is the inability to associate with ByteDance and its algorithm,” said Justice Ketanji Brown Jackson.
Jeffrey Fisher, a lawyer representing TikTok creators, emphasized that the law unjustly singles out TikTok while neglecting other Chinese-owned companies like TEMU, continuing that the selective enforcement indicates concerns beyond national security may be influencing the legislation.
The Liberty Justice Center filed an emergency petition alongside some TikTok creators, stating that the ban would “shut down the core political speech of millions of Americans.”
Chief Justice John G. Roberts Jr. said that Congress didn’t care about the content on TikTok, only the risks.
“I’m concerned about the government’s attempt to lodge secret evidence in this case without providing any mechanism for opposing counsel to review it,” said Justice Neil M. Gorsuch, echoing concerns about the federal government using classified information to defend the law.
U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, argued that the platform poses a “significant” national security risk while emphasizing that the Chinese government could potentially exploit the platform to access sensitive data for users or manipulate content to influence public opinion.
“ByteDance might be, through TikTok, trying to get Americans to argue with each other,” asked Roberts.
Prelogar arguments underscored the administration’s stance that the potential threats justify the law and the sale or ban of the platform, stating the law is simply attempting to “surgically remove the ability of a foreign adversary nation to get our data” and control the platform.
Prelogar also referenced the sale of Twitter to Elon Musk, who renamed it as X, showing that the sale of a social media platform can happen quickly.
“There was a well-publicized incident where ByteDance in China surveilled U.S. journalists,” Prelogar said, referencing the four employees fired by ByteDance after using the platform to surveil journalists in 2022.
She continued, “This is the protected user data they were using in order to try to figure out who was leaking information from the company to those journalists.”
While ending her argument, Prelogar said that while the security concern might not be a concern for teenagers who use the popular app, the data accessed might come back to haunt them, especially those who end up working for the government.
Prelogar stated, “For the Chinese government to have this vast trove of incredibly sensitive data about them, I think, obviously exposes our nation as a whole to a risk of espionage and blackmail.”
Closing arguments focused on balancing national security concerns with constitutional protection.
The Supreme Court decision is expected before the Jan. 19 deadline.
