Supreme Court justices slammed First Amendment arguments made by TikTok as the popular social media app tries to avoid a U.S. ban in the coming days.
Lawyers for ByteDance, the parent company of TikTok, went before the Supreme Court on Friday in a last-ditch effort to prevent the app from vanishing. The government passed a ban on the app, unless it is sold, citing national security concerns given TikTok’s ties to China’s communist party.
TikTok has argued that the app should be able to exist in the U.S. under free speech claims.
TikTok is one of the most popular social media applications in the U.S. with more than 170 million monthly users and more than half are under the age of 30.
“Congress doesn’t care about what’s on TikTok,” Chief Justice John Roberts said during oral arguments. “They don’t care about the expression. That’s shown by the remedy. They’re not saying TikTok has to stop. They’re saying the Chinese have to stop controlling TikTok.”
Justice Amy Coney Barrett questioned lawyers and noted they kept referring to the so-called “shutting down” of the app. The Trump-appointed Justice stated TikTok didn’t have to close, just that it needed to find a new owner.
Fellow Trump-appointed Justice Neil Gorsuch questioned the free speech issues and argued the country’s answer to problematic speech is counter-speech.
It wasn’t just conservative justices that attacked the TikTok arguments.
Newest, and Biden-appointed, Justice Ketanji Brown Jackson asked: “I’m trying to understand what the burden is that you are articulating and really whether it’s about association and not speech…What you’re really complaining about is the inability to associate with ByteDance and its algorithm.”
Even Obama-appointed Justice Elena Kagan said ByteDance doesn’t have the same rights as everyday Americans.
“The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights,” Kagan stated.
The harsh tone justices took toward TikTok’s argument have some believing that it is likely the ban will be upheld. But, it will be up to a future Supreme Court ruling to signal where the justices fall.
Many of the app’s Gen-Z users are not happy with a potential ban.
“We are starving, we are dying, people are in jail for f***ing marijuana charges, we’re in a war that we should not be in in the first place and TikTok is our most pressing concern? I don’t think so,” Make-up artist James Charles said in an interview with NBC in March.
The law, Protecting Americans From Foreign Adversary Controlled Applications Act, was passed by Congress in April with bipartisan support – something that justices found compelling.
Lawmakers were concerned that the Chinese government could obtain Americans’s data and “covertly” manipulate what U.S. users see or spread misinformation and propaganda.
One example, used on Friday, outlined the possibility of the Chinese government collecting the data of a young TikTok user who eventually grew up to become a member of the military or federal government. Now, the Chinese have data on a person who could hold a key position.
That argument seemed to get the justices’ attention.
Some First Amendment proponents agree with TikTok and say it’s a massive platform with a highly unique algorithm that essentially functions as a public square. Muting it would restrict Americans’s speech, they argue.
Ramya Krishnan, an attorney and senior staff attorney at the Knight First Amendment Institute, focuses on issues related to government transparency, censorship and social media. She and her colleagues, who submitted and amicus brief in the case, believe the government’s case does not justify outright banning the app.
“To the extent that the government is concerned that there is covert manipulation, the most direct way to address that concern is disclosure,”: Krishnan told The Independent. “If the concern is with foreign government speech or propaganda, as we argue in our brief, that kind of concern can’t justify a flat-out ban on Americans access to speech from abroad.”
TikTok’s lawyers made that point during arguments, saying the platform could add a “disclosure” on its app – essentially informing people every time they go on it that their data could be used by the Chinese.
The government believes that’s not good enough because it’s not specific and thus people would just ignore it.
Solicitor General Elizabeth Prelogar suggested China could “covertly” manipulate what videos people see as a means to generate chaos and arguments. Justices did not seem convinced that was a compelling reason, that is, after all, how algorithms work on every other platform.
“You get what you get and you think ‘that’s puzzling’,” Kagan said to laughter. “It’s all a little bit of a black box.”
Regarding the government’s concerns about protecting Americans’ sensitive data, Krishnan says it is a “compelling interest” but there are still other ways to achieve that such as “passing a comprehensive data privacy law.”
Creators are seemingly preparing for a world in which TikTok disappears by diversifying their content mediums. Whether it’s starting a YouTube channel or podcast, opening a new business or moving their short-form videos to Instagram.
The government says TikTok could be reinstated, even after January 19, so long as ByteDance divests from it. They believed the current deadline would light a match under ByteDance to work harder to find a U.S. operator.
The court could also place a pause on the law taking effect and wait for President-elect Donald Trump to take office – something he asked the court to do. Despite Trump trying to ban TikTok during his first term, he now claims he will save it.
