Most Supreme Court justices appeared supportive during oral arguments on Friday of a law taking effect this month requiring TikTok be sold or essentially shut down in the US. Rather than uphold or reject the legislation, the court could impose an administrative stay, Politico reports, that would block it from taking effect on Jan. 19 while justices consider the new law at length. That would deliver the issue to the doorstep of a newly inaugurated President Trump. The 2½-hour hearing covered:
- Arguments for: Solicitor General Elizabeth Prelogar told the justices that the platform is a threat to national security and that China could employ it to collect data allowing it to manipulate or blackmail Americans, the Washington Post reports. In arguing for the administration, she said speech on TikTok would face no restrictions once the platform is no longer controlled by another country.
- Arguments against: Lawyers for the social media platform and its Chinese owner, ByteDance, maintained in oral arguments that the measure, which passed Congress with bipartisan support and signed by President Biden, would violate the free speech protections of the more than than 170 million TikTok users in the US. Concerns about possible manipulation by another government don't justify those violations, they said. The law is aimed at the content of speech, they argued, which isn't allowed by the Constitution, per the New York Times. ByteDance has no First Amendment rights.
- The clues: The justices seemed to see the issue as China's ownership, not the platform itself. "Congress is fine with the expression," Chief Justice John Roberts said, per the AP. "They're not fine with a foreign adversary, as they've determined it is, gathering all this information about the 170 million people who use TikTok." Only Justice Neil Gorsuch sounded like he bought the free speech argument, saying the Biden administration's position reflects a "paternalistic point of view." He pointed out that TikTok has said it could post a warning that China could manipulate the content. Justice Samuel Alito said another company could take TikTok's place, meaning users would not suffer much harm.
Given the deadline, a ruling could be issued as soon as next week.
- Change in ownership: ByteDance has said it won't sell the short-form video platform. But investors, including Trump allies, are interested. Frank McCourt's Project Liberty initiative said it put together an offer for TikTok's US assets with partners. The group includes Shark Tank host Kevin O'Leary.
- Trump's ask: The president-elect wants the court to delay implementation until his administration can reach a political deal on the matter. On Friday, the justices showed little interest in Trump's request; the Times reports the brief filed by his lawyer spent more time praising the president-elect than it did laying out out substantive arguments.
- The reality of a ban: Some experts contend that there might be enough legal and technical loopholes in the event of a ban that users could keep using it, per the Post.
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