Listen Live: TikTok Supreme Court arguments underway as ban deadline nears

Kavanaugh asked Prelogar whether the president could just announce that the Justice Department wouldn't enforce the law, and she said he could.

But Kavanaugh said tech companies that offer TikTok in their app stores would likely need assurances that they would not be prosecuted by the Justice Department if the platform was still available given that decision.

Part of the record in the case is classified and therefore not available to the public. The D.C. Circuit did not rely on that secret information when it ruled against TiKTok, it said.

But Prelogar urged the justices to look at the sealed appendix in the case to get a better sense of how data has to flow from TikTok to ByteDance in order for the algorithm to be refined and improved.

"It's eye-opening," she said, adding that there is a "wealth of information about Americans that would have to go back to China."

Prelogar said there is evidence to show that while ByteDance claimed it walled off U.S. data during earlier discussions with national security officials, there was a publicized incident where ByteDance and China surveilled U.S. journalists to find the source of leaks.

But Roberts said it "doesn't seem fair" that the government and justices can see that information, while TikTok does not. Prelogar, though, said it's in the sealed appendix and therefore includes information that came from TikTok.

"If we were to affirm and TikTok were forced to cease operations on Jan. 19, you say that there could be divestiture after that point and TikTok could again begin to operate the way — continue to operate?" Alito asked.

"That's exactly right. There's nothing permanent or irrevocable that happens on Jan. 19," Prelogar answered. "And I think that Congress might have thought that we'd get in a situation here where a foreign adversary is doing whatever it can to just not comply. It's hoping the United States is going to blink first … but Congress set a deadline, and I think it thought that deadline would have a forcing function."

Returning to a question that Gorsuch first asked of the creators' lawyers, Barrett asked Prelogar if the government thinks Trump can extend the Jan. 19 deadline once he takes office.

Prelogar said it "tees up a statutory interpretation question of whether there can be an extension after the time period for divestiture had lapsed" and pointed to some historical cases that suggested Trump could issue an extension. 

But Prelogar said she was "not prepared" to take a firm position since the question isn't directly at issue in the case.

Arguments have now passed the two-hour mark, which was the amount of time the Supreme Court allotted. Prelogar continues to answer questions from the justices. Francisco will also return to deliver a rebuttal after the solicitor general's presentation.

Kagan said she was trying to think of a historical parallel for this case. She landed on the 1950s and the Communist Party of the United States. If Congress had ordered the party to separate from the Communist International, "essentially a Soviet operation," would that have been legal?

Prelogar said she would need "more information about how the international organization is able to exercise control over the American affiliate." 

Kagan and Gorsuch have both seized on the Justice Department's argument that the law aims to prevent covert content manipulation by China and concerns it could weaponize TikTok behind the scenes to sow division and discord and weaken the U.S.

"Does covert just mean it's hard to figure out how the algorithm works? Because we could say that about every algorithm," she asked Prelogar. 

The solicitor general said the covert nature has to do with China's involvement in potentially distorting the content on TikTok.

"It's just because we don't know that China's behind it, that's what covert means? It doesn't have anything to do with the difficulty of figuring out what the algorithm is doing? It's just because people don't know that China is pulling the strings, that's what covert means?" Kagan said, later joking that it's clear now that everyone knows of China's involvement. 

The justice noted that all social media platforms are "black boxes" as to how their algorithms work.

"You get what you get and you think, that's puzzling. And it's all a little bit of a black box," she said, adding that "I just don't get what this covert word does for you."

Gorsuch, following up, asked why a disclosure notice wouldn't address concerns that Americans could secretly be manipulated by the content appearing on their feed.

"The average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated even though there's a disclosure saying it could be manipulated?" he said.

"Did I understand you say a few minutes ago that ByteDance might be, through TikTok, trying to get Americans to argue with each other? If they do, I'd say they're winning,"  Roberts asked, as laughs rang out in court.

"That might very well be true, Mr. Chief Justice," Prelogar responded. "The point I'm trying to make is that China is a foreign adversary nation that looks for every opportunity it has to weaken the United States and threaten our national security."

Solicitor General Elizabeth Prelogar is now presenting her argument on behalf of the government.

"The important thing to recognize is that the act leaves all of that speech unrestricted once TikTok is freed from foreign adversary control," she said. "The First Amendment does not bar Congress from taking that critical and targeted step to protect our nation's security."

In an interesting comparison, Alito likened content creators' love for TikTok to a person's bond with a piece of clothing.

"I mean, I really love this old shirt because I've been wearing this old shirt, but I could go out and buy something exactly like that, but no, I like the old shirt? Is that what we have here?" he asked Fisher.

Alito asked whether only ByteDance has the ability to create such a powerful algorithm that "the geniuses at Meta and all these social media companies, they put their minds to it, they couldn't come up with this magical thing."

Fisher said other social media companies have been trying to catch up to TikTok in terms of popularity and reach, but have not been successful. He offered his own comparison, equating the platform's algorithm to a collection of thousands of editors that cannot be replicated by another group.

Under questioning from Barrett, Fisher sought to clarify that the speech at issue in the case is that of the users.

"I don't mean to diminish Mr. Francisco's arguments on behalf of the company and ByteDance, but the core speech in front of you in this case is the videos and other forms of communication that people like my clients are posting by the millions everyday on this platform to share with other Americans," he said.

Barrett asked if the creators could win their argument if the companies lose theirs.

"If you were to conclude that the corporate ownership structure … impeded Mr. Francisco from being able to assert full-throated First Amendment rights in this case, I would step in and say, well, certainly we can do that," he said.

Kagan again focused on the distinction between ByteDance and TikTok, and said it's a given that Congress can take actions intended to interfere with the content manipulation of a foreign corporation.

"Why isn't this Congress acting with respect to ByteDance in the sense that all its doing is saying ByteDance has to divest and then TikTok can go about its business, use whatever algorithm it wants, use whatever content moderation policies it wants, just like everybody else does choosing from everything that's viable on the open market?" she said.

But Fisher, who is representing the creators, said his clients are then prevented from working with an application owned by ByteDance. 

"That's our editor and publisher of choice that we think best disseminates our speech," he said.

Kagan again noted ByteDance is a foreign corporation with no First Amendment rights.

Fisher, though, said under that view, creators have no right to make documentaries with the BBC and can't work with Al Jazeera or other companies that are state-owned.

The law goes into effect on Jan. 19, but also grants the president the ability to extend the deadline by 90 days if a sale is in progress. Gorsuch asked whether Trump could still implement the delay if the deadline has already passed once he takes office.

"Could the new administration, after Jan. 20 — Mr. Francisco suggested that it might be able to extend the deadline, even though, if you were to lose, by Jan. 19. Is that possible, as you read the law?" Gorsuch asked.

"I'm not sure it is. Maybe that's a question for the solicitor general," Fisher responded.

"Oh, I'm sure it is, I thought I'd give you a chance too," Gorsuch said, eliciting laughs in the courtroom.

"As I understand the law, it's 270 days unless extended, and once that time runs, I'm not sure you're talking about an extension any more," Fisher said.

Echoing Kavanaugh's line of questioning to Francisco earlier in the argument session, the chief justice also raised Congress' concerns about the Chinese government having access to millions of Americans' data collected by TikTok.

"Congress doesn't care about what's on TikTok. They don't care about the expression. That's shown by the remedy" of the platform having to divest from ByteDance, he said.

Roberts continued: Congress is "saying the Chinese have to stop controlling TikTok, so it's not a direct burden on the expression at all. Congress is fine with the expression. They're not fine with a foreign adversary, as they've determined it is, gathering all this information about the 170 million people who use TikTok."

The chief justice also noted that whether China uses the data in 10 or 15 years — when its users are older — or whether it uses it now, that is what Congress was worried about when it approved the law with bipartisan support.

"They're not concerned about the content," Roberts said. "They're concerned about what the foreign adversary is doing."

Jeffrey Fisher, co-director of the Supreme Court Litigation Clinic at Stanford Law, is now arguing for the eight creators challenging the ban.

"Under the First Amendment, mere ideas do not constitute a national security threat. Restricting speech because it might sow doubt about our leaders or underimine our democracy are kinds of things our enemies do. It is not what we do in this country," he said before taking questions.

Justice Ketanji Brown Jackson asked her first questions of Francisco after nearly an hour of arguments, questioning whether the issue is really about TikTok's association with ByteDance.

"If TiKTok were to, post-divestiture or pre-divestiture, come up with its own algorithm, then when the divestiture happens, it could still operate," she told Francisco of the law. "It doesn't say, 'TikTok, you can't speak.'"

Jackson, the newest member of the court, said TikTok's lawyer was "wrong about the statute being read as saying TikTok, you have to go mute, because TikTok can continue to operate on its own algorithm, on its own terms, as long as it's not associated with ByteDance. So isn't this really about association?"

Jackson then questioned Francisco about the standard of review the justices should apply. Two of the judges on the D.C. Circuit applied strict scrutiny, the highest and most demanding form of judicial review, and said the government satisfied that standard. The third judge said intermediate scrutiny, the middle level, applied. The three-judge panel unanimously agreed in upholding the divest-or-ban law.

She asked whether the government's concerns about data collection and content manipulation are not compelling interests.

Content manipulation, Francisco said, is an "impermissible" interest. He said the government could not approach CNN or Fox and tell the networks they are manipulating content in a way the government disfavors.

Kavanaugh asked Francisco to lay out what happens on Jan. 19 without action from the court.

"At least as I understand it, we go dark. Essentially the platform shuts down," he said.

"Unless there's a divestiture," Kavanaugh said.

"Unless there's a divestiture. Unless President Trump exercises his authority to extend it. But he can't do that on Jan. 19. On Jan. 19, we still have President Biden, and on Jan. 19, as I understand it, we shut down," Francisco said. "It is possible that come Jan. 20, Jan. 21, 22nd, we might be in a different world. Again, that's one of the reasons why that makes perfect sense to issue a preliminary injunction and buy everyone a little breathing space."

Kavanaugh, who worked in the White House under President George W. Bush before he was appointed to the federal bench, pointed to the concerns of Congress and the president about TikTok's ability to collect data from 170 million American users, which China could then access.

"I think Congress and the president were concerned that China was accessing information about tens of millions of Americans … that they would use that information over time to develop spies, to turn people, to blackmail people," Kavanaugh said, noting that many of TikTok's users are in the teens and 20s, and may go on to work for the FBI, State Department or other agencies within the federal government.

Francisco said there are "lots of reasons" why that risk can't justify the law. But Kavanaugh said TikTok's data-collection practices "seems like a huge concern for the future of the country."

Roughly 40 minutes into arguments, and with Francisco still fielding questions from the justices, several seem to be skeptical of TikTok's arguments that the divest-or-shutter law infringes on its First Amendment rights.

Justices from the liberal and conservative wings of the bench have questioned why TikTok has to use ByteDance's algorithm, as well as whether the case is about the free speech rights of the U.S.-based platform or its parent company, which is headquartered in China.

Following up on questions about whether the challenge involves the First Amendment rights of TikTok, a U.S.-based company, or ByteDance, Justice Elena Kagan said ByteDance is a "foreign company," and questioned how TikTok's free speech rights are being implicated.

"This statute says the foreign company has to divest," she said. "TikTok still has the ability to use whatever algorithm it wants, doesn't it?"

Kagan noted that the statute only requires the foreign company to divest or face a ban, and said it leaves TikTok with the "ability to do what every other actor in the United States can do, which is, go find the best available algorithm."

"The law is only targeted at this foreign corporation which doesn't have First Amendment rights," she said, adding that perhaps ByteDance will decide to make its algorithm more widely available, thereby allowing TikTok to use it.

Justice Amy Coney Barrett tried to identify the speech that's at issue in the case. 

"Am I right that the algorithm is the speech here?" Barrett asked. 

Francisco said the algorithm is "a lot of things" and "basically how we predict what our customers want to see."

"What we're talking about is … the editorial discretion that underlies the algorithm," Barrett posited. "And I just want to be clear, a lot of your examples talk about, including the Bezos one, the right of an American citizen to repeat what a foreign entity says … Here the concern is about the covert content manipulation piece of the algorithm. That is something that ByteDance wants to speak, right?"

Francisco said that "ultimately it's TikTok's choice whether to put that on the platform," and that TikTok and ByteDance "absolutely resist any content manipulation by China."

"I'm trying to figure out what content, if any, discrimination is going on here," Barrett said moments later.

Justice Neil Gorsuch posed a series of questions to Francisco to clarify facts of the case, including about TikTok's powerful algorithm that determines what content to serve users.

Francisco said TikTok, which incorporated as a U.S. company, does have a choice over whether to use Bytedance's algorithm, but said it would be an "incredibly bad business decision" for the platform to abandon it. Additionally, it's "doubtful" TikTok would ever do that, he said.

Gorsuch then asked about whether ByteDance has responded to China's demands to censor content outside of China.

Francisco said the record shows ByteDance hasn't "done anything here in the United States" with respect to TikTok, and it hasn't removed or restricted content on the TikTok platform at China's request in other parts of the world.

Gorsuch, though, said "that doesn't necessarily cover covert content manipulation, right?"

Justice Brett Kavanaugh is asking Francisco about the lower court's decision in favor of the U.S. government, particularly Chief Judge Sri Srinivasan's concurring opinion finding that there is a long history of regulatory restrictions on foreign control of mass communications channels.

Justice Samuel Alito is now posing his own hypothetical: if TikTok was totally controlled by a foreign government, would that be different than the platform's current ownership structure?

Francisco noted there are many companies in the U.S. who have foreign ownership, such as the news outlet Politico, which has German owners. In this instance, he said there is a bona fide U.S. company.

Chief Justice John Roberts noted that Congress found that ByteDance cooperates with the Chinese government's intelligence work and has to comply with China's laws.

"Are we supposed to ignore the fact that the ultimate parent is in fact subject to doing intelligence work for the Chinese government?" he asked.

Roberts said Francisco seemed to be ignoring the concerns of Congress, namely the ability of the Chinese government to covertly manipulate content on TikTok and collect vast swaths of Americans' data.

Francisco has raised a hypothetical to show how the ban affects TikTok, asking the justices to imagine the Chinese government using leverage over Amazon founder Jeff Bezos' international empire to force the Washington Post to write articles favorable to China.

The U.S. government, he said, couldn't require Bezos to shut down the Post or sell it.

Francisco told the court that the divest-or-shutter law implicates the First Amendment and said it cannot satisfy any level of judicial scrutiny. He said the government's target with the law is "speech itself."

"In short, this act should not stand," Francisco said.

He urged the court to temporarily ban the law "at a minimum."

Justice Clarence Thomas kicked off the questioning for the justices, as has become typical in recent years, asking why a restriction on ByteDance, which is headquartered in Beijing, is a restriction on TikTok.

"You're converting the restriction on ByteDance's ownership of the algorithm and the company into a restriction on TikTok's speech," Thomas asked. "So why can't we simply look at it as a restriction on ByteDance?"

Chief Justice John Roberts convened the court for arguments in TikTok's challenge. Noel Francisco, who is arguing on behalf of the platform, will present TikTok's case first. He has two minutes to deliver opening remarks without interruption before the justices can jump in with questions.

Trump sought to effectively ban TikTok during his first administration, but his executive order targeting the app was blocked by a federal court and later rescinded by President Biden.

But in the years since his August 2020 action, Trump has warmed to the widely popular platform. He met with TikTok's chief executive officer at his Mar-a-Lago estate in December and has praised the app for helping him win over young voters in the presidential election.

Trump also submitted a friend-of-the-court brief with the Supreme Court urging it to pause implementation of the law to allow him time to negotiate a resolution that would keep TikTok operating in the U.S. while addressing the government's national security concerns.

"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 — concerns which President Trump himself has acknowledged," D. John Sauer, a lawyer for Trump, wrote in the filing.

The president-elect has said he intends to nominate Sauer to serve as solicitor general. If confirmed, he would represent the federal government before the Supreme Court.

Noting that Trump is set to begin his second term on Jan. 20, one day after the ban-or-divest law takes effect, Sauer wrote that Trump "has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means."

Lawyers for TikTok, the group of eight content creators and the Justice Department will be arguing whether the law passed by Congress last year violates the First Amendment.

TikTok's attorneys have said the government's justification is "at war with the First Amendment." The legislation, lawyers for the creators wrote in their filing, "violates the First Amendment because it suppresses the speech of American creators based primarily on an asserted government interest — policing the ideas Americans hear — that is anathema to our nation's history and tradition and irreconcilable with this court's precedents."

But the government has said the vast amount of information TikTok collects on its users could be wielded by the Chinese government for "espionage or blackmail" purposes or to "advance its geopolitical interests" by "sowing discord and disinformation during a crisis." 

"In response to those grave national-security threats, Congress did not impose any restriction on speech, much less one based on viewpoint or content. Instead, Congress restricted only foreign adversary control: 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 [People's Republic of China's] control," the Justice Department said. 

Solicitor General Elizabeth Prelogar will be arguing on behalf of the federal government. Noel Francisco, who was solicitor general in Trump's first administration, will present on behalf of TikTok and ByteDance.

Jeffrey Fisher, co-director of the Supreme Court Litigation Clinic at Stanford Law, will argue for the eight creators challenging the ban.

The court has set aside two hours for arguments, but they'll likely go longer.

Lawmakers and intelligence agencies have long had suspicions about the app's ties to China and have argued that the concerns are warranted because Chinese national security laws require organizations to cooperate with intelligence gathering. FBI Director Christopher Wray told lawmakers last year that the Chinese government could compromise Americans' devices through the software.

In classified briefings, lawmakers have learned "how rivers of data are being collected and shared in ways that are not well-aligned with American security interests," Democratic Sen. Chris Coons of Delaware said last year. 

In its filings to the Supreme Court last month, the Justice Department argued 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 prohibited TikTok on federal government devices in 2022, and a majority of states have barred the app on state government devices.

TikTok and ByteDance filed a legal challenge last May that called the law "an extraordinary and unconstitutional assertion of power" based on "speculative and analytically flawed concerns about data security and content manipulation" that would suppress the speech of millions of Americans. 

"In reality, there is no choice," the petition said, adding that a forced sale "is simply not possible: not commercially, not technologically, not legally." 

A federal appeals court issued a ruling in December that upheld the law, saying the U.S. government "acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States."

A week later, the appeals court denied TikTok's bid to delay the law from taking effect pending a Supreme Court review. 

On Dec. 16, TikTok asked the Supreme Court for a temporary pause, saying it would suffer "immediate irreparable harm" if the ban is not delayed. 

Two days later, the Supreme Court said it would take up the challenge to the law under an expedited timeline. It scheduled arguments for Jan. 10, nine days before the law takes effect. 

App stores, like those operated by Google and Apple, and internet-hosting companies will be barred from distributing TikTok. That means Americans who have already downloaded the app will be unable to update it, eventually making it obsolete. Those who have not downloaded the app will be unable to do so.  

The government could impose penalties on the tech companies that continue to host TikTok on their platforms. The law does not penalize Americans for using the app. 

Last month, the leaders of the House China Committee sent letters to Apple and Google telling them to be ready to remove TikTok from their app stores by Jan. 19. 

The ban would be lifted if TikTok and ByteDance ever part ways. 

But there are several pathways to avoid a ban outside of Supreme Court intervention, experts told CBS News. Read more about those options here. 

The law is set to take effect on Jan. 19, one day before President-elect Donald Trump's inauguration.

In April, Congress swiftly passed the bipartisan legislation, known as the Protecting Americans from Foreign Adversary Controlled Applications Act, as part of foreign aid package. It was signed into law by President Biden. 

The law gave TikTok nine months to sever ties with its Beijing-based parent company ByteDance, with the possibility of a 90-day extension if a sale was in progress by the January deadline. Absent a sale, TikTok is supposed to lose access to app stores and web-hosting services in the U.S. beginning on Jan. 19.