The TikTok ban heads to the Supreme Court tomorrow. Here's what to know about the case.
Washington — The Supreme Court is set to hear arguments Friday morning on whether to overturn or delay a law that could lead to a ban on TikTok in the U.S. in the coming days.
The law is set to take effect on Jan. 19, nine months after it swiftly passed Congress with bipartisan support and was signed into law by President Biden. It requires the widely popular app to cut ties with its China-based parent company, ByteDance, or lose access to app stores and web-hosting services in the U.S. The law also gives the president the ability to grant a 90-day delay in its implementation if a sale is in progress.
The case pits the First Amendment's right to free speech against what the federal government and lawmakers say are threats to national security posed by TikTok. The Supreme Court moved with extraordinary speed in considering the case, agreeing to take up the dispute just two days after lawyers for the platform sought its intervention on an emergency basis.
The question before the court is whether the law targeting TikTok violates the First Amendment. Here's what to know about the case:
The law at the center of the case
The legal battle arose from a law passed by Congress as part of a foreign aid package in April. Called the Protecting Americans from Foreign Adversary Controlled Applications Act, the measure makes it unlawful for third-party service providers like Google or Apple to "distribute, maintain or update" an app controlled by a foreign adversary by providing certain services, such as offering it in app stores.
Under the law, any app operated by ByteDance, TikTok, or its subsidiaries is considered a "foreign adversary controlled application." The designation also covers apps operated by a "covered company" controlled by a foreign adversary — China, Russia, North Korea or Iran.
The prohibitions are set to take effect 270 days after the law was enacted, on Jan. 19. Under the law, TikTok can remain available, however, if it divests from ByteDance. The measure also allows the president to grant a single, 90-day extension if a sale is underway.
What are the arguments?
In a brief laying out its arguments to the Supreme Court, the U.S. government 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.
Lawyers for TikTok have argued that shuttering the app in the U.S. will silence not only its speech, but also that of the 170 million Americans who regularly use it. In its filing, lawyers for the platform called the potential shutdown "unprecedented" and said the government's justification is "at war with the First Amendment."
Additionally, TikTok has argued that divesture from ByteDance is not possible, and the parent company said in April that it will not sell the platform.
A group of eight TikTok users also challenged the law on First Amendment grounds and have argued that outlawing the platform will deprive them of access to a "vital communications forum," through which they can earn a living and spread ideas.
The legislation, lawyers for the creators wrote in a filing with the court, "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 an appeals court disagreed with TikTok and the users' First Amendment claims. In a December ruling, a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit was sympathetic to the government's argument that TikTok poses a national security risk. The appeals court later rejected TikTok's bid for a temporary pause on the ban while it sought the Supreme Court's review.
Thomas Berry, an expert in constitutional law at the Cato Institute, said it would be "unprecedented" for the Supreme Court to uphold a law that restricts such a popular and widely used platform in the U.S., but said its reasoning if it sides with the government is significant.
"If the court relies on notions of disinformation or content manipulation as a justification, that would be extremely harmful to the First Amendment doctrine because it would essentially give a greenlight to the government targeting a speech platform for the content it carries," he said. Berry filed a friend-of-the-court brief in support of TikTok and the users.
But if the court upholds the law based on the data collection concerns, he said "that would still be unfortunate deference shown to government arguments that haven't been backed up by a public record, but that would potentially be more of a good-for-this-case-only type of ruling."
Additionally, Berry said the impact of a ban on users is an important perspective for the court to consider.
"It humanizes the speech happening on this platform and emphasizes, especially to justices who might not be familiar with it, that this isn't just speech being broadcast in from foreign countries," he said. "This is primarily Americans speaking to other Americans, and lots of totally apolitical speech is happening and being found through the TikTok discovery algorithm."
Jennifer Safstrom, who directs the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, said TikTok may have more of an uphill battle in making its case because "one of the strengths of the government's position is that the executive and legislative branches are given a lot of deference with respect to national security."
"So there's often a hesitancy for courts to second-guess the political branches on those kinds of national security questions," Safstrom told CBS News.
Patrick Toomey, the deputy director of ACLU's National Security Project, said the government has not supported its claims against TikTok with concrete public evidence. The ACLU has urged the Supreme Court to block the ban in a friend-of-the-court brief.
"The government can't impose this type of total ban unless it's the only way to prevent extremely serious and imminent harm to national security," Toomey told CBS News. "That means not just gesturing at the possibility that these types of harms could come from exploitation of TikTok, but providing evidence that either those harms are ongoing and widespread or are imminent, and we haven't seen that kind of evidence."
Trump opposes TikTok ban
The Supreme Court is hearing the case in the final days of the Biden administration. President-elect Donald Trump, who in recent months has expressed support for TikTok, takes office a day after the law is set to go into effect.
A lawyer for Trump filed a friend-of-the-court brief asking the Supreme Court to pause the law's implementation, saying the incoming president opposes banning TikTok at this time and wants the ability to resolve the dispute through "political means."
"President Trump takes no position on the merits of the dispute. Instead, he urges the Court to stay the statute's effective date to allow his incoming Administration to pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government's national security concerns," Trump's attorney D. John Sauer wrote.
The president-elect intends to nominate Sauer for solicitor general in his second term. If confirmed by the Senate, Sauer will argue on behalf of the federal government before the Supreme Court.
Trump recently met with TikTok's chief executive at his Mar-a-Lago estate in Florida and has praised the platform for helping him win over younger voters in the November election.
The president-elect's support for the widely popular app is an about-face from his first term in office. In August 2021, he took unilateral action that would have effectively banned TikTok in the U.S. after finding that its data collection posed a risk that China would use Americans' data for malign purposes. The ban, however, never took effect after it was blocked by a federal court and the executive order rescinded by Mr. Biden.
Though Trump is pushing for a delay, members of his incoming administration have firmly backed restricting TikTok, including his nominee to be secretary of state, Republican Sen. Marco Rubio of Florida, and his national security adviser pick, Republican Rep. Mike Waltz of Florida.
Leaders of the House China Committee and Republican Sen. Mitch McConnell of Kentucky also submitted friend-of-the-court briefs to the Supreme Court, both arguing that the law should be upheld.
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 response to the national security concerns, Congress prohibited TikTok on federal government devices in 2022, and a majority of states have barred the app on state government devices.
TikTok has argued that several issues would arise if the platform is forced to cut all ties to ByteDance. Because the Chinese government is opposed to selling the algorithm that tailors video recommendations to each user, a new buyer would have to rebuild it from scratch. The platform would also become a "content island" in the U.S. — if it cannot share data with ByteDance, "American users would be unable to access global content, and American creators would be unable to reach global audiences," its lawyers said.
How TikTok could avoid a ban
Still, TikTok has several pathways to avoid a ban outside of Supreme Court intervention, experts told CBS News.
Trump could take action once he's in office and ask the Justice Department not to enforce the law or prosecute tech companies, like Apple and Google, who host TikTok in their app stores. Trump also has the authority to issue a 90-day delay of the law after Jan. 19, though he would have to certify to Congress that "evidence of significant progress" toward a divestiture has taken place.
TikTok won't disappear from Americans' phones on Jan. 19 if the law takes effect. However, users would not be able to update the app and those who don't already have it would not be able to download it.
