Supreme Court sounds ready to back TikTok ban law

Michael Macagnone, CQ-Roll Call on Jan 10, 2025

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WASHINGTON — The Supreme Court during oral arguments Friday appeared ready to allow a law that would ban social media giant TikTok unless it divests from its Chinese parent company ByteDance Ltd. by Jan. 19.

The justices occasionally questioned how the law would impact the free speech rights of the platform and its users. But they generally appeared receptive to Biden administration arguments that the law is necessary for national security because the Chinese government could gain access to user data or covertly manipulate the content on the platform.

The Supreme Court has just over a week to rule before the deadline in the law.

TikTok and a group of users attempted to convince the justices to overturn a ruling from the U.S. Court of Appeals for the District of Columbia Circuit last year upholding the law.

Noel Francisco, representing TikTok, argued that the law was meant to allow Congress to control what Americans could see and publish online.

Even if the Chinese government wanted to take over the app to broadcast its preferred views, Francisco said the First Amendment means Congress “has no valid interest in preventing foreign propaganda.”

But that argument ran into concerns from several justices that the law was meant to address valid concerns about a foreign government using the app to hurt American interests. Chief Justice John G. Roberts Jr. repeatedly raised concerns about the Chinese government’s ability to co-opt ByteDance’s operations to its own ends.

“It seems to me that you’re ignoring the major concern here of Congress, which was Chinese manipulation of the content and acquisition and harvesting of the content,” Roberts said.

Justice Clarence Thomas also pointed out the law “doesn’t say anything about creators or people who use the site. It’s only concerned about the ownership and the concerns that data will be manipulated or there will be other national security problems.”

Jeffrey Fisher, arguing on behalf of a group of users who challenged the law, argued that the app’s users have the right to publish on the platform they choose, which includes TikTok. He also said that the Biden administration’s “content manipulation” justification amounts to trying to control speech online.

“The government tells you in its own brief that it is worried about, here are the ideas that might be expressed on Tiktok, that we might undermine U.S. leadership, we might sow doubts about democracy, we might have pro-China views,” Fisher said. “That is an impermissible government interest.”

Solicitor General Elizabeth B. Prelogar defended the law, arguing that Congress did not intend to infringe on the free speech rights of TikTok or its users and only acted to remove the Chinese government’s ability to use the platform.

“All the act is doing is trying to surgically remove the ability of foreign adversary nation to get our data and to be able to exercise control over the platform,” Prelogar said.

Justice Neil M. Gorsuch pushed back on Prelogar’s argument that Americans could be subject to manipulation by the Chinese government, calling it a “pretty paternalistic point of view” and suggested that broader disclosures of Chinese influence could work better.

Prelogar argued that a generalized disclosure about the possibility of Chinese influence “wouldn’t put anyone reasonably on notice about when it’s actually happening.”

Several times, justices said they had issues with the fact that the law dealt with risks tied to the protected speech on the TikTok platform — and the Biden administration’s efforts to say the law did not target free speech.

At one point Justice Brett M. Kavanaugh said that the Biden administration’s data security concerns were “very strong” but its content manipulation justifications “raise much more challenging questions for you.”

Justice Elena Kagan also pushed back on Prelogar’s statements trying to distance the divestiture law from free speech issues. “I think you’ve just given your thing away,” Kagan said. “Content manipulation is a content-based rationale.”

The case is Prelogar’s last scheduled argument before the start of the Trump administration. President-elect Donald Trump has already signaled he would not support banning the app, despite the fact that the law takes effect a day before he comes into office.

In an amicus brief filed in the case, Trump attorney D. John Sauer raised the possibility of a policy reversal once Trump takes office Jan. 20. Sauer urged the justices to “stay” the law from taking effect so that Trump could devise a negotiated solution to the national security concerns it raised.

Justice Samuel A. Alito Jr. asked whether the court could administratively stay the case to allow Trump to take a different position or to enact a 90-day extension allowed by the law.

Prelogar said she would not take a position on whether Trump could institute the 90-day delay and cautioned the justices against staying the effective date of the law without actually ruling on its constitutionality.

“I don’t see any basis for this court to displace the deadline that Congress set without finding that actually there is a potential First Amendment problem here,” Prelogar said.