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WASHINGTON (CN) — TikTok inched closer to a ban Friday as the Supreme Court justices pinned looming nationwide restrictions on the refusal of the app’s foreign-based owner to divest from the popular social platform.
“You’re wrong about the statute saying, ‘TikTok you have to go mute,’” Justice Ketanji Brown Jackson, a Joe Biden appointee, said.
TikTok claims it must pull the plug on access for 170 million American users on Jan. 19 without the high court’s intervention. However, the justices suggested that the app has a clear path to keep the lights on.
“The law doesn’t say TikTok has to shut down,” Justice Amy Coney Barrett said. “It says ByteDance has to divest.”
President Joe Biden signed the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act into law last April, prohibiting foreign adversaries from controlling social media apps over national security concerns.
The government said ByteDance’s ownership provides a path for the Chinese government to gain access to unprecedented troves of data from American users. U.S. Solicitor General Elizabeth Prelogar said Friday China can use that data to build detailed profiles about Americans, providing a powerful tool for covert manipulation that undermines U.S. security.
“The national security harm arises from the very fact of a foreign adversary’s capacity to secretly manipulate the platform to advance its geopolitical goals,” Prelogar said.
In one incident cited by the government, ByteDance and China surveilled U.S. journalists to uncover leaks about the company.
In 2017, China passed a national intelligence law requiring Chinese companies and citizens to cooperate with national intelligence efforts. A follow-on data-security law gives Chinese government authorities jurisdiction over data outside its mainland to preserve national security or investigate crimes.
TikTok has refused to even consider divestment, claiming that the law is unconstitutionally restricts speech. During the nearly two and a half hour argument session Friday, the app fought suggestions that TikTok could operate separately from ByteDance, stating that the forced divestment curtailed TikTok’s First Amendment rights.
Justice Clarence Thomas, a George H.W. Bush appointee, said TikTok was converting the laws’s restriction on ByteDance into a ban on the social platform. Jackson pointed out that the platform was really complaining about its ability to associate with ByteDance.
The justices seemed to think that any First Amendment harms resulting from TikTok’s shutdown were due to ByteDance’s actions, not the law.
“It’s not to say that the First Amendment isn’t involved because TikTok is going to suffer some severe incidental effects,” Justice Elena Kagan, a Barack Obama appointee, said. “But they are incidental, aren’t they?”
Even if TikTok is pushing pro-communist China propaganda, the app argued that such speech would be protected under the First Amendment.
The high court wasn’t any more receptive to that argument, however. Justice Samuel Alito, a George W. Bush appointee, was one of several justices who pointed out that foreign countries do not have First Amendment rights like Americans.
Several social media creators joined TikTok in the challenge to the law. They said the law restricted their ability to exercise the First Amendment in the modern public square. Brain Firebaugh, a first-generation rancher and U.S. Marine Corps veteran uses his account to share agricultural knowledge, while Chloe Joy Sexton launched her cookie business on the platform.
Firebaugh, Sexton and other creators said banning TikTok would erase their online communities and block the exchange of ideas on topics from news and politics to entertainment and pop culture.
“Whether you’re an ordinary citizen, or, I might add, whether you’re a presidential candidate in our last election, if you want to reach new and different audiences, TikTok is the place people go,” the creators’ attorney said.
Despite issuing an executive order banning the app in 2020, President-elect Donald Trump called on the court to put off a ruling in the case so he could negotiate a deal that wouldn’t ban the app. Trump attributed his change of heart to his growth on the platform during the election, suggesting that his expertise aided in his electoral win.
TikTok was amenable to this outcome, suggesting that at the very least, the justices should temporarily block the law to allow for a different solution under the new administration.
If ByteDance were to relinquish its ownership, the Biden administration said TikTok could continue to operate without any additional changes. But Prelogar pushed the justices to carry out Congress’ charge and enforce the law without any further delay.
“Foreign adversaries do not willingly give up over this mass communications channel in the United States,” Prelogar said. “And I think Congress expected we might see something like a game of chicken … but when push comes to shove and these regulations take effect, it might fundamentally change the landscape of what ByteDance may consider. It might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process.”
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