WASHINGTON: Supreme Court justices posed tough questions to the lawyer representing TikTok and its Chinese parent company ByteDance on Friday over a law that would force a sale or ban the widely used short-video app by Jan 19 in the United States in a case that pits free speech rights against national security concerns.

TikTok and ByteDance, as well as some users who post content on the app, have challenged a law passed by Congress with strong bipartisan support last year and signed by outgoing Democratic President Joe Biden, whose administration is defending it.

During arguments in the case, the nine justices probed the nature of TikTok’s speech rights and the government’s concerns over national security — that the app would enable China’s government to spy on Americans and carry out covert influence operations.

TikTok, ByteDance and the app users appealed a lower court’s ruling that upheld the law and rejected their argument that it violates the US constitution’s First Amendment protection against government abridgment of free speech.

The Supreme Court’s consideration of the case comes at a time of rising trade tensions between the world’s two biggest economies. Republican Donald Trump, due to begin his second term as president on Jan 20, opposes the ban.

Noel Francisco, a lawyer for TikTok and ByteDance, told the justices that the app is one of the most popular speech platforms for Americans and that it would essentially shut down on Jan 19 without a divestiture. Francisco said the real target of the law “is the speech itself — this fear that Americans, even if fully informed, could be persuaded by Chinese misinformation. That, however, is a decision that the First Amendment leaves to the people”.

“In short, this act should not stand,” Francisco said of the law.

Francisco cited Trump’s stance on the case.

On Dec 27, Donald Trump called on the Supreme Court to put a hold on the Jan 19 deadline for divestiture to give his incoming administration “the opportunity to pursue a political resolution of the questions at issue in the case”. Francisco asked the justices to, at a minimum, put a temporary hold on the law, “which will allow you to carefully consider this momentous issue and, for the reasons explained by the president-elect, potentially moot the case”.

Concerns about free speech, security

The Supreme Court was weighing competing concerns — about free speech rights and about the national security implications of a social media platform with foreign owners that collects data from a domestic user base of 170 million Americans, about half the US population.

Referring to ByteDance, Liberal Justice Elena Kagan told Francisco that the law “is only targeted at this foreign corporation, which doesn’t have First Amendment rights”. Conservative Chief Justice John Roberts pressed Francisco on TikTok’s Chinese ownership and the findings of Congress.

“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Roberts asked. “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”.

“Congress doesn’t care about what’s on TikTok,” Roberts added. ” They’re not saying, `TikTok has to stop’.” Instead, Roberts said, Congress was saying China must stop controlling TikTok.

“So it’s not a direct burden” on free speech, Roberts added.

Geopolitical goals

Solicitor General Elizabeth Pre­logar, arguing for the Biden administration, said Chinese government control of TikTok poses a grave threat to American national security. TikTok’s immense data set on its American users and their non-user contacts gives China a powerful tool for harassment, recruitment and espionage, Prelogar said, and its government “could weaponise TikTok at any time to harm the United States”.

Published in Dawn, January 11th, 2025