TikTok ban: Key takeaways from the Supreme Court hearing

The U.S. Supreme Court heard arguments Friday morning in a case challenging a ban of TikTok in the United States if it is not sold by its owner, ByteDance, which is based in China.

TikTok has repeatedly claimed that the law requiring the ban is a violation of First Amendment rights. The federal government has argued that because TikTok’s parent company, ByteDance, is based in China, the platform is a potential threat to national security. Therefore, TikTok could stay active in the U.S. if it separated from ByteDance and was sold to a U.S.-based company. However, ByteDance has said since April of last year that it has no plans to sell TikTok.

The first hour of arguments was presented by Noel Francisco, the lawyer for TikTok and ByteDance; the second half of the hearing was conducted by Jeffrey Fisher, an attorney representing TikTok content creators, who argued that the law violates the creators’ rights too. U.S. Solicitor General Elizabeth Prelogar closed out the hearing by arguing on behalf of the government in defense of the law.

Approximately 170 million people in the U.S. use TikTok. If the justices decide to uphold the ban, which was signed into law in April 2024, the app will be shut down on Jan. 19.

TikTok’s argument before the Supreme Court

Throughout the Supreme Court hearing, Francisco argued that because TikTok is based in the United States, the company should benefit from First Amendment protections under the Constitution.

While TikTok’s parent company, ByteDance, is based in China, Francisco insisted that TikTok does not share any user data or personal information with ByteDance and that the Chinese government does not have any direct or indirect ownership or control over ByteDance.

One of the concerns regarding ByteDance’s involvement in this case is about how TikTok uses ByteDance’s algorithm, which influences what content gets highlighted and shared with its users. TikTok has repeatedly argued that it is not possible to separate from ByteDance because that would separate the app from all the technologies that helped develop TikTok’s success, such as its algorithm.

The Biden administration wrote in a Supreme Court brief that the law that seeks to ban TikTok in the United States did not violate First Amendment rights because it was about separating the app from its Chinese parent company, which is similar to “approaches previously taken by Congress and the Executive Branch to address the national-security risks arising from foreign-owned commercial entities.”

During the second hour of oral arguments, Fisher said that if data security was the main concern for the government in writing this law, why then weren’t similar bans being considered for other Chinese-owned companies like Temu and Shein, which are also popular in the U.S.

TikTok cites Jeff Bezos and the Washington Post to make its point

In several legal filings, TikTok has tried to compare itself to news publishers or bookstores to support its argument that the law is a violation of TikTok’s First Amendment rights.

During the Supreme Court hearing, both Francisco and Fisher tried to use Jeff Bezos and his ownership of the Washington Post as hypothetical proof that the law if applied to Bezos and the Washington Post would be dismissed as a First Amendment violation

“Suppose that China uses leverage over Jeff Bezos’s international empire, including his Chinese businesses, to force the Washington Post to write whatever China wanted on the front page of the Post,” Francisco said. “Surely the government couldn’t come in and say, Jeff Bezos, you need to either sell the Washington Post or shut it down. That would violate the First Amendment rights of both Bezos and the Post.”

Later in the hearing, Justice Amy Coney Barrett brought up the example when speaking with Fisher about TikTok creators fighting against the law.

“Let’s say that for antitrust reasons … [Congress] tells Jeff Bezos that he has to divest in the Washington Post,” Barrett said. “Let’s say that neither Bezos nor the Post challenges that. But let’s say that you represent clients who really like the Post as it was — who want to keep receiving the Post, who really want to publish op-eds in the Post?”

Barrett then asked Fisher if this meant these Post readers had the right to challenge the ban.

“I believe so,” Fisher said. “The core speech used in this case are the videos and other forms of communication that people like my clients are posting by the millions every day on this platform to share with you.”

Government lawyer argues this is not a First Amendment violation

The main argument made by Prelogar, the U.S. solicitor general, is that the law against TikTok does not violate the First Amendment and instead is simply intended to “surgically remove the ability of a foreign adversary nation to get our data.”

“All of the same speech that’s happening on TikTok could happen postdivestiture,” she said. “The act doesn’t regulate that at all. So it’s not saying you can’t have pro-China speech, you can’t have anti-American speech. It’s not regulating the algorithm. TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users. All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.”

Justices question why TikTok won’t separate from ByteDance

Under the law, the TikTok ban would not go into effect if ByteDance were to sell the app to a U.S.-based company, something it has said it won’t do.

The Supreme Court justices asked Francisco and Fisher questions to try to understand the relationship between ByteDance and TikTok, and why they are refusing to divest from one another.

Justice Brett Kavanaugh asked Francisco to explain why the U.S. government should not be concerned about the possibility that the Chinese government, through ByteDance, could use information from tens of millions of American TikTok users.

“[China] would use that information over time to develop spies, to turn people, to blackmail people — people who a generation from now will be working in the FBI or the CIA or in the State Department,” Kavanaugh said. “Is that not a realistic assessment by Congress and the president of the risks here?”

The justices also questioned ByteDance’s role in influencing TikTok’s algorithm, which Francisco cited as a key reason why the two companies are refusing to separate.

“The government says that TikTok U.S. has no authority or ability to alter the algorithm or recommendation engine but must simply follow ByteDance’s directives,” Justice Neil Gorsuch said. “Somebody has to be right and somebody has to be wrong about that.”

“The fact is that TikTok, Inc., as a U.S. company, does have a choice over the algorithm,” Francisco said. “Now it would be an incredibly bad business decision for them to abandon this algorithm, and they [are] very doubtful they would ever do that. But they have that authority.”

Justice Elena Kagan also questioned TikTok’s commitment to using ByteDance’s algorithm, asking why the company couldn’t simply “go find the best available algorithm” available in the U.S. in order to avoid a ban.

“The statute only says to this foreign company, ‘Divest or else,’” Kagan said. “And leaves TikTok with the ability to do what every actor in the United States can do, which is go and find the best available algorithm.”

What’s next?

If the Supreme Court, like the federal court below it, rules in favor of the federal government, then TikTok will be banned on Jan. 19. This means that mobile app stores will immediately remove the option to update or download the TikTok app. The app will not be immediately removed from individuals’ phones but will become unusable.

If the Supreme Court takes TikTok’s side, then the app will be allowed to remain available in the U.S. under ByteDance’s ownership.

If the Supreme Court does not issue a decision before Jan. 19, the ban will still go into effect on that day but may not be permanent. On Dec. 27, 2024, President-elect Donald Trump filed a legal brief asking the Supreme Court to delay its decision on the TikTok ban until after he is officially in office on Jan. 20. The filing argues that the Supreme Court should allow Trump and his incoming administration to look into the political questions involved in the case, especially whether the ban is a violation of Americans’ First Amendment rights.