The Supreme Court on Friday heard oral arguments related to the “Protecting Americans from Foreign Adversary Controlled Applications Act,” which could lead to a national ban on video-sharing platform TikTok unless its parent company, ByteDance, divests from the app.
Concerns over ByteDance, a China-based company, led to the legislation passed in March 2024. Proponents of the measure argue that it is necessary to prevent the Chinese regime from collecting critical data from American users. Critics argue that banning the app violates the First Amendment.
These arguments played out during a Supreme Court session that lasted almost two and a half hours.
Solicitor General Elizabeth Prelogar argued in favor of the ban, arguing that ByteDance’s involvement presents a threat to national security. She insisted that the law does not violate the First Amendment because if ByteDance sells TikTok, it would leave “all of that speech unrestricted.”
Prelogar pointed out that the Chinese Communist Party (CCP) “is a foreign adversary nation that looks for every opportunity it has to weaken the United States and threaten our national security.”
Chief Justice John Roberts pointed out that the issue isn’t the nature of viewpoints being expressed on the app, as lawyers Noel Francisco and Jeffrey Fisher pointed out. He said, “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.”
Roberts jokingly noted that “If ByteDance, might be, through TikTok, trying to get Americans to argue with each other, I’d say they’re winning.”
The law is set to take effect on January 19, one day before President-elect Donald Trump’s inauguration. The Supreme Court is expected to issue a ruling before then. Prelogar argued that the law “does not impose any restriction on speech, much less one based on viewpoint or content.”
The issue with ByteDance being a Chinese company is that it could covertly funnel private information to the CCP, which could be used against Americans. Justice Brett Kavanaugh recalled that “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.”
Francisco, the attorney representing ByteDance and TikTok made the case that the law targets free speech, arguing, “This case ultimately boils down to speech. What we’re talking about is ideas,” and that the state’s “is at war with the First Amendment. This act should not stand.”
The lawyer also pointed out a stark inconsistency in how the law is applied when it comes to other China-based businesses. He pointed out 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.”
He asked, “Why is it that only this platform is being singled out?”
Justice Clarence Thomas chimed in, asking why the law should be considered an attack on TikTok’s speech when it is directed at ByteDance, a foreign company.
“You’re converting the restriction on ByteDance’s ownership of the algorithm and the company into a restriction on TikTok’s speech. So why can’t we simply look at it as a restriction on ByteDance?”
Fisher, the attorney representing TikTok content creators, insisted that “Under the First Amendment, mere ideas do not constitute a national security threat” addressing concerns that the Chinese government would use the app to sow discord and undermine faith in America’s government. “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 every day on this platform.”
Justice Samuel Alito seemed to suggest that if TikTok were banned in America, it would not necessarily restrict speech because content creators could simply use a different platform. He used an analogy of an old shirt to drive this point home.
“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?”
The attorney countered by pointing out that TikTok’s algorithm is unique, and other video-sharing platforms have been unable to replicate it.
The justices seem to push back on the First Amendment argument. “Why isn’t this Congress acting with respect to ByteDance in the sense that all it’s doing is saying ByteDance has to divest, and then TikTok can go about its business?” Justice Elena Kagan asked. “The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
If ByteDance does not sell TikTok by January 19, the app will no longer be available for use by Americans, Francisco noted earlier in the proceedings.
Roberts further argued that “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.”
Justice Neil Gorsuch asked Fisher whether Trump could extend the deadline after he takes office on January 20. The attorney replied, “I’m not sure it is. Maybe that’s a question for the solicitor general.”
Gorsuch responded, “Oh, I’m sure it is, I thought I’d give you a chance too,” eliciting chuckles from the courtroom.
He also questioned why the app couldn’t just provide a disclosure notice to users explaining that Americans could covertly be manipulated by the content on their timelines.
Justice Amy Coney Barrett repeated the question when it was Prelogar’s turn to make her arguments. The lawyer said, It tees up a statutory interpretation question of whether there can be an extension after the time period for divestiture had lapsed.”
Justice Sonia Sotomayor chimed in, saying she was “a little concerned that a suggestion that the president-elect or anyone else should not enforce the law .. would undermine Congress’ intent.”
Prelogar clarified that “If TikTok were forced to cease operations on Jan. 19, there could still be divestiture after that point, and TikTok could again begin to operate.”
While it is impossible to tell exactly how the court will rule, it appears the justices might side with Congress in this case. Most of the justices appeared more sympathetic to the solicitor general’s case than those opposing the ban.
President-elect Trump, who once supported a ban, has had a change of heart and indicated he would try to find a solution that would keep the app active.
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