Tik Tok’s ban could be upheld by the Supreme Court.
The Supreme Court on Friday heard oral arguments regarding the future of TikTok in the United States and a law that could ban the popular app as soon as next week.
The Protecting Americans from Foreign Entities Controlled Applications Act targets TikTok and imposes heavy civil penalties on “entities” operating the service after the January 19 deadline. Among the many issues the judges considered was whether the law violated the Constitution’s freedom of speech.
During the more than two-hour hearing, judges repeatedly questioned TikTok’s top lawyer about the social media platform’s relationship with the People’s Republic of China. And in general, TikTok’s main argument seemed unconvinced that the law violated the free speech rights of millions of its users in the United States.
Still, there are still questions about whether President-elect Donald Trump will be willing to enforce the law once he takes office, one day after it goes into effect. If Trump decides not to commit violations, third-party service providers will love it Apple And google They are faced with a dilemma: to follow the letter of the law or to trust the new administration’s assurances that they can actually ignore it.
Cornell University law professor Gautam Hans said in a statement that “the consensus of the court to allow the ban to go into effect seems correct.”
“The sad thing is the credibility with which so many of the justices have viewed this law, which imputes the right to free speech on unspecified national security grounds,” Hance said.
The Tik Tok controversy
Noel Francisco, US Attorney General during President Donald Trump’s first term, opened the hearing as TikTok’s legal representative. He echoed Trump’s wishes. To give Trump time to find a political solution to the national security concerns over TikTok, the court will stop the effective ban.
The judges questioned Francisco about TikTok’s relationship with China-based ByteDance, which owns the social media service TikTok, and questioned TikTok’s First Amendment argument against the law.
Much of the court’s line of questioning focused on TikTok’s ownership structure. Judge Samuel Alito asked Francisco whether he would make the same argument if TikTok were directly owned by the Chinese government, saying he did not want a lawyer for TikTok.
But Francisco insists Beijing will not force TikTok to make content decisions.
“We absolutely oppose any form of content manipulation in China,” Francisco said. For example, his careful use of the word “refuse” was noted by court watchers.
O’Melveny & Myers special counsel Jeffrey Fisher argued on behalf of TikTok’s content creators who are challenging the law.
In the interests of national security, “Congress can prohibit Americans from … associating with terrorist organizations,” Fisher said. But “the government doesn’t just come in and say ‘national security’ and it’s over.”
“You have to dig to the bottom of the national security claim,” Fisher said.
Government affairs
Much of the debate in favor of the TikTok Diversity Act has centered around the claim that TikTok poses a national security threat. This was the argument of US Solicitor General Elizabeth Preloger.
Americans who use TikTok may believe they are “talking to each other,” Prelogar said. But in reality, “a foreign adversary, the PRC, is exploiting vulnerabilities in the system instead.”
The judges pressed Prelogar on how TikTok differentiates itself from foreign-owned outlets such as Politico and Oxford University Press.
“China is a foreign adversary that seeks every opportunity to weaken the United States,” she said. “If he has control over[TikTok]it’s hard to predict exactly how he will use that tool to harm our interests.”
But we know Prelogar will try.
“What we’re trying to protect is not specific subject matter, specific views, but the technical ability of a foreign adversary to use a communication channel,” Prelogar said.
As for whether the incoming Trump administration could extend the deadline before the law is enacted, Prelogar said the US government has not yet taken a position on the matter.
“We didn’t run it on the ground, partly because it wasn’t offered here,” Prelogar said.
Trump will be inaugurated on January 20, and the release deadline is January 19.
As for whether President-elect Trump could choose not to comply with the law, Prelogar said it “raises a serious question.”
It’s unclear when the court will hand down its decision, and China’s ByteDance faces a nationwide ban if it continues to refuse to transfer Tik Tok to an American company.
What impact can it have on consumers?
TikTok’s roughly 115 million US monthly active users could face different scenarios depending on when the Supreme Court makes its decision.
If no word comes before the law goes into effect on Jan. 19 and the ban goes into effect, users may still be able to post or engage with the app if they’ve downloaded it. However, those users will not be able to update or re-download the app after that date, several legal experts said.
Thousands of short-form video creators who generate income from Tik Tok through ad revenue, paid partnerships, merchandise and more have to move their businesses to other platforms like YouTube or Instagram.
“Shutting down TikTok for even one day is a big deal, not just for people who create content on TikTok, but for everyone who shares or views content,” said George Wang of the Knight First Amendment Institute. He helped write the institute’s amicus brief in the case.
“It sets a very dangerous precedent for how we regulate speech online,” Wang said.
What comes next?
Although it is not clear when the Supreme Court will issue its decision, the case will be expedited, with some predicting that the court will issue a quick ruling.
Erwin Chemerinsky, dean of Berkeley Law, said the case would have “huge implications” because TikTok’s user base in the US is large.
“It’s unprecedented for the government to block speech platforms, especially ones that are used by so many people,” Chemerinsky said. “Ultimately, this is a tension between free speech issues on the one hand and national security claims on the other.”
“There are valid reasons to be concerned about privacy and data collection,” says Cornell’s Hans.
“But this bill specifically targets one forum in a way that makes us all worry whether future government action could target other speech forums.”
See: According to Jim Cramer, TikTok may indeed be shut down.
