By Alex Swoyer and Stephen Dinan – The Washington Times – Friday, January 10, 2025
TikTok’s fate rests with the Supreme Court, which grappled Friday with whether the company’s ties to a foreign adversary are so deep that national security concerns outweigh First Amendment rights.
The company asked the justices to block a law enacted last year by Congress. The law will force ByteDance, the Chinese parent company, to divest TikTok by Jan. 19. Otherwise, the social media app will disappear from U.S. platforms.
TikTok and some users have challenged the law, saying it tramples their First Amendment rights to associate and speak freely.
“This case ultimately boils down to speech. What we’re talking about is ideas,” said Noel Francisco, TikTok’s attorney. “If the First Amendment means anything, it means the government cannot restrict speech in order to protect us from speech.”
Solicitor General Elizabeth Prelogar, arguing for the government, said the law’s goal isn’t to shut down the platform and officials would be happy to see TikTok survive.
She said the problem is that TikTok is tied too closely to the People’s Republic of China, a nefarious adversary that could use the platform to undermine U.S. security. Secret documents provided to the court make clear those national security concerns.
“Congress just wants to cut the PRC out of the equation altogether,” she said.
Ms. Prelogar also insisted that a foreign corporation has no First Amendment rights.
The justices seemed conflicted in their questions to the attorneys. They wondered whose speech rights were at stake and whether the government’s stated national security interests were sufficient to overcome those rights.
“Congress doesn’t care about what’s on TikTok,” Chief Justice John G. Roberts Jr. said. “They’re not saying TikTok has to stop. They’re saying the Chinese government has 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 it is, gathering information.”
Justice Neil M. Gorsuch took issue with keeping some evidence under seal.
“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,” he said.
TikTok is a U.S.-based company, but its primary social media app uses computer source code from ByteDance, including the algorithm that decides which content to promote.
In approving the legislation, Congress concluded that the Chinese government regularly orders its companies to cooperate with Beijing. That means the algorithm could promote pro-Chinese propaganda. Lawmakers also worry that Beijing is harvesting Americans’ data through the app and could use it for nefarious purposes.
Mr. Francisco said TikTok has independent decision-making powers and could change the algorithm, but forcing it to do the difficult task would violate its speech rights.
“The fact is, TikTok, as a U.S. company, does have a choice over the algorithm,” Mr. Francisco said. “What they clearly have the authority to do is shut down the platform in the face of Chinese pressure.”
Congress approved the legislation with strong bipartisan support in April, and President Biden signed it into law.
The legislation gave ByteDance 270 days to sell the company. Otherwise, U.S.-based technology services would be ordered to stop offering or supporting the app under threat of civil penalties.
TikTok says roughly 170 million Americans use the short-video sharing platform, and 17% get their news from TikTok.
TikTok lost in a lower court, and the justices refused to issue an injunction before they heard from other parties.
President-elect Donald Trump has urged the high court to delay implementing the law to give him time to strike a deal that would not compromise national security or the First Amendment.
Although his petition is not on behalf of either party, he has been vocal in his defense of TikTok — a reversal from his critical stance of the app.
Mr. Trump has more than 14 million followers on the popular social media platform and has credited it with helping him win support among young voters.
Mr. Francisco said even if the app goes dark on Jan. 19, Mr. Trump could suspend the ban once he is in office the next day and restore operations. Jeffrey Fisher, the attorney for TikTok users, disputed that.
“It’s a very weird law” if the government is concerned about data security because it targets foreign ownership based on a specific viewpoint or perspective, Mr. Fisher said.
He said this violates the First Amendment rights of Americans using the platform.
Ms. Prelogar said she thinks ByteDance is trying to bully the U.S. into retreating on the divestiture demand but will become interested once the deadline has passed.
Mr. Francisco repeatedly compared the situation to traditional U.S. media outlets and companies.
He pointed out that Politico, a website covering political news, is German-owned, and AMC, a movie theater company, was once Chinese-owned.
He also offered a startling hypothetical involving The Washington Post and billionaire owner Jeff Bezos, a U.S. citizen: Even if the Chinese government kidnapped Mr. Bezos’ children to force him to publish Chinese propaganda in The Post, the U.S. government couldn’t force the newspaper to shut down or be sold by Mr. Bezos.
He said the government could require a disclosure from The Post that it is operating under coercion.
Mr. Francisco said Congress had alternatives to ordering divestiture. For example, lawmakers could have imposed severe penalties if the concern was harvesting data for China.
Some justices seemed reluctant to give ByteDance any First Amendment protections, and others seemed to agree that speech and content were an issue.
It’s unclear whether the justices will issue a final ruling by Jan. 19. One option would be for the court to issue an administrative stay, halting the law from taking effect while the justices consider the case. That could also give the Trump administration more time to adjust to the circumstances once it takes office.
The high court also could issue a preliminary injunction, which would halt the law from taking effect until a final decision is rendered.
The cases are TikTok v. Garland and Firebaugh v. Garland. Brian Firebaugh is a TikTok content creator.
