TikTok ban won't work, groups argue, in hope of eleventh-hour reprieve

WASHINGTON — Free-speech and tech groups are beseeching the Supreme Court to invalidate a law that would effectively ban TikTok after the court appeared inclined to uphold the law during oral arguments.

“A TikTok ban would hurt American businesses and consumers more than TikTok itself ever has,” said Ash Johnson, senior policy manager at the Information Technology and Innovation Foundation, a tech-focused think tank. “Such a ban would impact the millions of American content creators who use the platform to reach an audience as a hobby, a side hustle, or a primary source of income.”

Johnson said in an email that outlawing TikTok would “not prevent foreign election interference or halt the spread of misinformation online. Any foreign government can spread misinformation on any social network.”

The Knight First Amendment Institute at Columbia University also called on the court to strike down the law.

“Restricting citizens’ access to foreign media is a practice that has long been associated with the world’s most repressive regimes, and it would be deeply unfortunate if the Supreme Court let this practice take root here,” Jameel Jaffer, executive director of the institute, said in an email. “This law imposes a sweeping and unjustified restraint on Americans’ First Amendment rights, and the Court should strike it down for that reason.”

Both groups filed amicus briefs with the Supreme Court challenging the law. President-elect Donald Trump, who during his previous administration called for banning TikTok, has since reversed his position.

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.

The law would effectively ban TikTok from U.S. app stores unless the Chinese parent company ByteDance Ltd. divests its American arm by Sunday. The measure passed in both chambers of Congress with large majorities. The Supreme Court has to rule before the law’s deadline.

TikTok already faces restrictions around the world including in India and Nepal — where it’s completely banned — as well as in Canada, Taiwan and the United Kingdom, where it faces partial bans.

If the Supreme Court upholds the law, Apple and Google app stores would be required to stop offering the app. Oracle Corp., which stores U.S. users’ data on its servers, may also face restrictions. Users who already have TikTok downloaded on their devices may be able to continue using the app after Jan. 19 but the app would likely not get any further updates or security fixes.

The new Trump administration also could delay enforcement by providing a three-month extension permitted under the law to allow TikTok to complete a divestiture if the company seeks to pursue that option.

The case was taken up by the Supreme Court after a federal appeals court upheld the law last year.

In December a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed challenges from the video-sharing app, ByteDance and a group of its users, who argued the law would infringe on the free-speech rights of the platform and its users.

Skeptical court

During oral arguments on Jan. 10, Supreme Court 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 on national security grounds because the Chinese government could gain access to user data or covertly manipulate the content on the platform.

Noel Francisco, representing TikTok, argued 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, said 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 a 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 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.

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.