Supreme Court seems likely to uphold TikTok ban as deadline nears

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.

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 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 favorable articles about China.

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

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.

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 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.

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.

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.

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."

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."

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.

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.

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."

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.

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.

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.

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.

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."

"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."

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.

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." 

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.

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.

"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."

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.

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.

Throughout the more than two hours of arguments, TikTok is not the only platform that has been mentioned by the justice and the lawyers.

Bluesky, a relatively new platform, Meta and X have all been invoked at various times.

Prelogar pushed back on TikTok's claims that 270 days — the time from when the law was enacted to implementation — was not sufficient enough for it to divest from ByteDance and said that when billionaire Elon Musk purchased Twitter, just six months elapsed from offer to the deal's completion.

Additionally, she said TikTok has been on notice since 2020 that divestiture may be required.

Sotomayor noted to Prelogar that during Trump's first term in office, he acted unilaterally to order TikTok to divest, though that order was challenged and blocked. The legislation passed by Congress last year was then the product of a bipartisan investigation into the national security risks posed by TikTok.

"I am a little concerned that a suggestion that the president-elect or anyone else should not enforce the law when the law is in effect and has prohibited a certain action, that a company would choose to ignore enforcement on any assurance other than the change in that law," she said.

Sootmayor highlighted that if the app doesn't shutter on the 19th, then there would be a violation of Congress' new law, and said that doesn't change regardless of what the new president does.

Francisco is now back up delivering his rebuttal. He will get the last word before the court adjourns. He is noting that several other foreign-owned companies, such as the Chinese site Temu, also collect data on American visitors but have not been targeted over national security concerns.

Francisco said the court could issue an administrative stay or preliminary injunction to temporarily halt enforcement of the law "given the enormity of this decision" and the complexity of the case.

"This case ultimately boils down to speech. What we're talking about is ideas," he said. "My friends on the other side, when you cut through everything else, are ultimately worried that the ideas that appear on the TikTok platform could in the future somehow manipulate Americans, could somehow persuade them, could somehow get them to think something that they ought not be thinking. That whole notion is at war with the First Amendment."

Arguments in the case, known as TikTok v. Garland, concluded after just over two and a half hours. The justices are expected to act quickly, given the approaching Jan. 19 deadline for TikTok to divest or face a ban.