Supreme Court justices sounded skeptical of some of the free-speech arguments made Friday by TikTok, heightening pressure on the popular social media app as its Chinese parent faces a Jan. 19 deadline to divest the platform or face a US ban.
Several legal experts said they now expect the court to keep the law mandating that divestment in place.
"It sounds to me like there is a majority of justices prepared to rule on the merits before the 19th and uphold the law," said Pepperdine University law professor Barry McDonald.
G.S. Hans, a Cornell University law professor who is critical of the law, added that "after today’s arguments, the consensus that the court will allow the ban to go into effect seems correct."
Justices from both sides of the ideological spectrum questioned the ties between TikTok’s parent ByteDance and the Chinese government and raised concerns about the Chinese government having access to data of 170 million US TikTok users.
"Are we supposed to ignore the fact that the ultimate parent is in fact subject to doing intelligence work for the Chinese government?" Chief Justice John Roberts said.
TikTok argued Friday that the company’s proprietary algorithm is in fact an editorial expression that qualifies as a form of constitutionally protected speech. An attorney for TikTok creators also argued that the First Amendment gave his clients the right to use the publisher of their choice.
But Supreme Court Justice Elena Kagan said the federal law mandating divestment of the app “is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
Giovanna Gonzalez of Chicago demonstrates outside the U.S. Capitol last March, before Congress approved a bill that may result in a TikTok ban. REUTERS/Craig Hudson ·REUTERS / Reuters
Justice Sonia Sotomayor, who was appointed by President Barack Obama, noted the US concern that TikTok, which by law must share data demanded by the Chinese government, collects data not solely on its 170 million American users but on the users' contacts — who may not be engaging with the platform.
“From what I understand ... not only is [TikTok] getting your information, it’s asking and most people give it permission to access your contact list, whether that contact list has permitted them to or not. So they can now have data about all of your contacts and anything you say about them."
For the US, she added, “The threat of using that information is what is at issue. It's not whether the user thinks it's okay.”
Trump, who on the campaign trail suggested in a social media post that he would "save TikTok," has asked the court to suspend the divestment deadline and consider his preference for a “negotiated resolution" — given that, as president, he will be responsible for national security.
McDonald of Pepperdine University said he doesn’t think that will happen.
“Whereas I wondered about the possibility of a temporary stay or injunction to give the incoming Trump administration time to negotiate a solution, after listening to arguments I don't think the court will go there,” he said.
During his first presidential term, in late 2020, Trump used an executive order to try to force a sale of TikTok over national security concerns. At the time, Microsoft (MSFT) and Oracle (ORCL) were floated as prospective buyers.
President-elect Donald Trump at Mar-a-Lago Thursday, in Palm Beach, Fla. (AP Photo/Evan Vucci) ·ASSOCIATED PRESS
US Solicitor General Elizabeth Prelogar, who argued on behalf of the government, said it was not clear whether Trump could extend the Jan. 19 divestment deadline when he becomes president. But he could decline to enforce the law after he takes office.
TikTok lawyer Noel Francisco said, "[It] is possible that come January 20, 21st, 22nd we might be in a different world. Again, that's one of the reasons why I think it makes perfect sense to issue a preliminary injunction here and simply buy everybody a little breathing space."
Some justices on Friday did offer criticism of the government’s viewpoint that it wasn’t restricting free speech with this new law.
Justice Samuel Alito asked whether the TikTok ban was a speaker-based restriction. “Aren’t speaker-based restrictions almost always viewpoint-based restrictions, content-based restrictions?” he asked.
“If somebody says, ‘Joe can’t talk anymore,’ they’re going to shut Joe up,” Alito said. “We don’t know what he’s going to discuss, but whatever he says is bad, because Joe is a bad person. That’s viewpoint and content-based, isn’t it?”
“I think when it comes to a foreign adversary, it’s not right to view it that way,” Prelogar said in response. “This is a sophisticated adversary nation.”
Prelgoar said the divest or ban statute lawfully prevents the Chinese government from collecting a “vast trove” of information on Americans who are now minors but someday may become members of the US military or other national security departments.
Justices from across the ideological spectrum took interest in that claim.
The U.S. Supreme Court building in Washington, U.S. REUTERS/Will Dunham ·REUTERS / Reuters
"I think Congress and the president were concerned that China was accessing information about millions of Americans — tens of millions of Americans —including teenagers, people in their 20s," Justice Brett Kavanaugh said.
"And that they would use that information over time to develop spies, to turn people to blackmail people, people who a generation from now will be working in the FBI or the CIA or in the State Department."
Kavanaugh asked TikTok's lawyer, "What happens after Jan. 19 if you lose this case?"
"At least as I understand it, we go dark. Essentially, the platform shuts down," TikTok's lawyer said.
How the Supreme Court rules in this blockbuster case will have dramatic implications for TikTok's 170 million American smartphone users as well as some of the biggest technology companies in the US.
A ruling from the Supreme Court to uphold the ban could be a long-term boon for TikTok's social media rivals by redistributing advertising dollars to platforms like Meta (META), according to Mark Lightner, head of special situations legal research for CreditSights, an independent credit research firm.
TikTok's millions of users, especially small business owners, are worried about whether they'll be able to continue to create content on the platform or save their content if the app is shuttered, according to Pepperdine University media and intellectual property law professor Victoria Schwartz.
"In terms of content, under TikTok's licensing agreements, the intellectual property belongs to its content creators," Schwartz said.
Account holders who want to keep their content, she said, should have a plan in place to back up all of that content. "It doesn't do any good if you own intellectual property rights and it's stored only somewhere in the TikTok universe."
Hans, the law professor at Cornell University, said Friday that even though he expects the Supreme Court to uphold the law it raises concerns because it provides an "underspecific" national security basis.
"There are valid reasons to have concerns about privacy and data collection, but this law specifically targets one platform in ways that should make us all unsettled about whether future government action could target other speech platforms," he said.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on X @alexiskweed.
