The Supreme Court indicates its intention to maintain the prohibition on TikTok due to national security issues, along with additional insights derived from the oral arguments.
A significant portion of the Supreme Court seems inclined to uphold a contentious prohibition on TikTok, driven by apprehensions regarding its connections to China. During the proceedings, justices posed incisive inquiries to the legal representatives of the social media platform and a collective of its content creators.
Throughout the extensive two-hour oral arguments, many justices appeared to interpret the sell-or-ban legislation, enacted by Congress in April, not primarily as a matter of First Amendment rights, but rather as a measure aimed at regulating the potential foreign influence over an application utilized by 170 million Americans.
On March 22, 2023, individuals convened for a press conference on Capitol Hill in Washington, DC, to express their opposition to a TikTok ban. Reports indicated that the White House had informed TikTok on March 15, 2023, that it would face a ban in the United States if it remained under the ownership of the Beijing-based technology firm ByteDance.
The legislation, which would limit the app's operations in the United States unless its Chinese parent company, ByteDance, divests from it, is scheduled to take effect on January 19 unless the Supreme Court intervenes to temporarily halt it. A ruling regarding the implementation date of the ban could be forthcoming, potentially before the justices address any fundamental issues related to speech protections.
Both former Presidents Donald Trump and Joe Biden have previously expressed concerns regarding content manipulation on the platform and its data collection practices. TikTok contended that these concerns were speculative and rejected any implication that the Chinese government influenced the selection of content, such as cat videos, recipes, and news, viewed by millions of Americans on the app.
Key points from Friday’s oral arguments include:
Roberts skeptical that First Amendment applies
Justices from various ideological backgrounds expressed skepticism regarding whether the TikTok ban even engaged the First Amendment. This poses a significant challenge for TikTok, as it must first establish that the First Amendment is applicable in this situation and subsequently demonstrate that the law does not satisfy its constitutional criteria.
During a discussion with an attorney representing TikTok users, Chief Justice John Roberts remarked that Congress appeared to be “fine with the expression” when enacting the law.
“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,” he stated.
Roberts further questioned TikTok’s attorney about the absence of precedent for the court invalidating a law on First Amendment grounds that was designed to regulate a corporation's structure.
Justice Elena Kagan also posed inquiries indicating her uncertainty regarding the applicability of the First Amendment in this instance, although she later directed critical questions toward the government.
“The law is only aimed at this foreign corporation, which doesn’t possess First Amendment rights,” she noted to the attorney representing TikTok.
Justice Kavanaugh emphasized concerns related to national security. Historically, the Supreme Court has shown deference to other governmental branches on matters of national security, which is why Solicitor General Elizabeth Prelogar concentrated heavily on this aspect during her arguments.
“For years, the Chinese government has sought to build detailed profiles about Americans – where we live and work, who our friends and coworkers are, what our interests are, and what our vices are,” Prelogar stated in her concluding argument on behalf of the Biden administration.
She asserted that TikTok’s “immense data set” would provide China with “a powerful tool for harassment, recruitment, and espionage.”
This argument seemed to resonate with both Roberts and Justice Brett Kavanaugh, another conservative often positioned at the ideological center of the court.
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