Will the Supreme Court save TikTok? What's ahead in the final legal showdown.
WASHINGTON ? The Supreme Court threw TikTok a potential lifeline on Wednesday when it agreed to quickly hear the company’s challenge to a law requiring it be sold or face a ban in the U.S. next month.
But the short-form video app and its Chinese parent company, ByteDance, still have the tough task of convincing the Supreme Court to overturn an appeals court’s decision that national security concerns outweigh the law’s infringement of free speech rights.
“This is the sort of government regulation of speech that the First Amendment is intended to prevent,” said Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School. “But this is the set of facts and circumstances where the court is most likely to nonetheless allow that regulation.”
Opponents of the law say the lower court gave too much deference to the federal government’s national security concerns and not enough consideration of freedom of expression when upholding the law.
“We usually look to courts to stand up to the government when it infringes on the constitutional rights of millions of Americans, and I'm not sure the D.C. Circuit did that here,” said George Wang, an attorney at the Knight First Amendment Institute.
TikTok users are also looking to President-elect Donald Trump to fulfill his campaign promise to “save TikTok.”
But it’s unclear how he could do so.
Here’s what you need to know.
What happens next?
The Supreme Court will hear oral arguments in the case on Jan. 10. This is an expedited schedule because TikTok is up against the law’s Jan. 19 divesture deadline.
TikTok had asked the court to put the deadline on hold while the justices consider the case, or to at least give 13 days' notice that the deadline is firm, which would allow app stores and internet host providers time to comply if the app can no longer be used in the U.S.
Instead, the court deferred a decision on whether to pause the deadline until after the oral arguments.
What is the Supreme Court deciding?
The issue is whether the law Congress passed this year with wide bipartisan support violates the First Amendment. If it does, a majority of justices have to be convinced that the law achieves an important government goal that can’t be addressed in other ways.
That goal is to prevent China from gathering data on Americans or manipulating the content on TikTok to shape U.S. opinion. About four in ten young adults in the U.S. regularly get news from the app, according to the Pew Research Center.
TikTok proposed ways of addressing the government’s concern without a sale.
But the Biden administration concluded that some data of U.S. users would still flow to China and ByteDance would still be able to exert control over TikTok’s operations in the U.S. The administration also didn’t trust that ByteDance would comply in good faith and didn’t think the U.S. could adequately monitor compliance.
How did the lower court rule?
In upholding the law, two of the three judges on the U.S. Court of Appeals for the D.C. Circuit who heard the case said the statute was “carefully crafted” and is part of a broader effort to counter a well-substantiated national security threat posed by China.
“The Government provides persuasive support for its concerns regarding the threat posed by the PRC in general and through the TikTok platform in particular,” wrote Judge Douglas Ginsburg in an opinion joined by Judge Neomi Rao.
Both judges were appointed by Republican presidents – Ginsburg by Ronald Reagan and Rao by Trump.
The third judge – Sri Srinivasan, who was appointed by Democrat Barack Obama – agreed the law should be upheld but wrote a separate opinion.
That agreement across ideological lines among a respected trio of judges doesn’t bode well for TikTok’s chances at the Supreme Court.
Still, Mary-Rose Papandrea, a professor at the University of North Carolina School of Law, said the appeals court’s opinion was “somewhat remarkable in the dramatic amount of deference” given to the government’s national security argument.
“So much on TikTok has nothing to do with China or Taiwan or any other geopolitical issue and has to do more with ridiculous products and cat videos and all sorts of things where I don't see much of any real danger,” she said during a recent discussion of the case on a podcast co-hosted by Lawfare and New York University’s Center on Technology Policy. “Like, `Oh, I'm going to watch too many cat videos?’”
What will the Supreme Court do?
Leslie Garfield Tenzer, a professor at Pace University Law School, said the outcome is difficult to predict, in part, because of TikTok’s huge reach.
“It’s become so ingrained in our economy with content providers and selling things,” she said, “that it really will shut down a sector.”
But other experts think the national security concerns that persuaded the appeals court are likely to resonate with the justices, even though the government presented no evidence that China is misusing the app.
“If you're TikTok, you're going to say, `Look, there's no smoking gun here,’ which is true,” Alan Rozenshtein, associate professor at the University of Minnesota Law School said during the podcast discussion. “And if you're the government, you can say, `OK, well, there's no smoking gun, but there's a gun. It's on the table. It's loaded. It's pointed at us. And we know that the shooter has shot the gun in other circumstances. So do you want us to wait?’”
Rozenshtein said he’s very doubtful that the court will save TikTok, leaving Trump as a last option.
Will TikTok be banned? Donald Trump says he has a 'warm spot' for app as it faces January deadline
Can Trump 'save' TikTok?
The most straightforward way for Trump to thwart the law is to get Congress to repeal it, a tall order.
Once Trump takes office ? the day after the Jan. 19 deadline ? he could also try to take advantage of ambiguity in the law about whether the president can declare that TikTok is no longer controlled by a Chinese entity, according to Rozenshtein.
“So it's possible, that if Trump wants to help TikTok, he will get ByteDance to shuffle some papers around, sell some assets from here to there,” Rozenshtein said. “And then say that gives them enough legal cover to just announce that a divestiture has happened.”
Trump could also direct his attorney general not to enforce the law. The problem with that is whether Apple, Google and any other conduits for the app will feel that’s enough protection.
“I don’t think that the companies would be willing to take that risk,” Hurwitz said. “The penalties in this law are nontrivial.”
What about TikTok's users?
Critics of the law complain that the appeals court barely addressed the First Amendment rights of TikTok users in speaking, sharing and receiving information on the platform.
“The free speech implications of the coming ban on TikTok in the United States are staggering and unprecedented,” Erwin Chemerinsky, dean of the University of California, Berkeley Law School recently wrote in an opinion piece arguing the Supreme Court should strike down the law.
About one-third of Americans supported the government banning TikTok in a Pew Research Center survey conducted this summer. Twenty-eight percent opposed a ban and 39% were unsure.
Even if TikTok is taken over by another owner so it can remain in operation, free speech advocates argue that’s not good enough.
Divestiture “would inevitably alter the platform, the user experience, and the community of users,” the American Civil Liberties Union, the Electronic Frontier Foundation and the Knight First Amendment Institute told the Supreme Court.
“It's just not true that all social media platforms are sort of fungible, that they all provide the same things, and they all have the same communities,” said Wang of the Knight First Amendment Institute. “The idea that removing a platform’s owner somehow doesn’t have implications for free speech I think woefully misunderstands how social media platforms work.”
This article originally appeared on USA TODAY: Will the Supreme Court save TikTok? What to expect in legal showdown.