On Friday, it seemed probable that the US Supreme Court would uphold a regulation that would compel ByteDance, the Chinese company that owns TikTok, to either sell the enormously popular online video-sharing platform or shut it down.
The majority of the nine-member bench’s conservative and liberal justices seemed dubious of claims made by a TikTok attorney that compelling a sale violated the company’s First Amendment right to free expression.
The rule, which was signed by President Joe Biden in April, would prevent TikTok, which has 170 million members in the US, from accessing US app stores and web hosting services unless ByteDance sells off its stake in the social media company by January 19.
According to the US government, TikTok serves as a platform for propaganda and gives Beijing permission to gather information and spy on users. ByteDance and China vehemently refute the allegations.
During two and a half hours of oral arguments, TikTok attorney Noel Francisco stated, “This case ultimately boils down to speech.” Ideas are what we are discussing. The government cannot censor speech, if the First Amendment is to be believed.
Citing TikTok’s Chinese ownership, a number of the justices objected.
Justice Samuel Alito stated, “There’s a good reason for saying that a foreign government, especially an adversary, does not have free speech rights in the United States.” Why would everything change if it were only concealed under a phony corporate structure of some sort?
Chief Justice John Roberts and Justice Brett Kavanaugh brought up the Protecting Americans from Foreign Adversary Controlled Applications Act’s national security implications.
“I believe the president and Congress were worried that China was gaining access to data about tens of millions of Americans, including teenagers and people in their twenties,” Kavanaugh stated.
“That they would use that information over time to develop spies to turn people, to blackmail people, people who a generation from now will be working in the FBI or the CIA or in the State Department,” he continued, was their worry.
Is the court “supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Roberts questioned the TikTok attorney.
Francisco claimed that Congress had alternative options for resolving its issues, like mandating that information from TikTok users in the US not be shared with third parties.
He said, “They never even thought of that most obvious alternative,” which is to say, “You can’t give it to China, you can’t give it to Google, you can’t give it to Amazon, you can’t give it to ByteDance.”
Francisco was questioned about what would happen if ByteDance decided not to sell TikTok after January 19.
He declared, “We go dark.” “The platform basically shuts down.”
Justice Amy Coney Barrett took issue with Francisco’s characterization.
“You keep saying shut down,” Barrett said. “The law doesn’t say TikTok has to shut down. It says ByteDance has to divest. If ByteDance divested TikTok, we wouldn’t be here, right?”
Solicitor General Elizabeth Prelogar, representing the Biden administration, also raised national security concerns, calling Chinese government control of TikTok a “grave threat.”
“The Chinese government could weaponize TikTok at any time to harm the United States,” Prelogar said. “There is no protected First Amendment right for a foreign adversary to exploit its control over a speech platform.”
The potential ban could strain US-China relations just as Donald Trump prepares to be sworn in as president on January 20.
Trump, who has 14.7 million followers on TikTok, has emerged as an unlikely ally of the platform — in a reversal from his first term, when the Republican leader tried to ban the app.
Trump’s lawyer, John Sauer, filed a brief with the Supreme Court last month asking it to pause the law, “thus permitting President Trump’s incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.”
In an 11th hour development on Thursday, US billionaire Frank McCourt announced that he had put together a consortium to acquire TikTok’s US assets from ByteDance.
“We look forward to working with ByteDance, President-elect Trump, and the incoming administration to get this deal done,” McCourt said.
AFP, among more than a dozen other fact-checking organizations, is paid by TikTok in several countries to verify videos that potentially contain false information.
