Banning TikTok: How both sides made their case to the Supreme Court and what the judges asked for

On Friday, the country’s highest court heard arguments on whether to support or block legislation that could effectively ban TikTok in the US. US operations or face a ban in that country. The session, which comes just nine days before the January 19 deadline, is TikTok’s final legal decision against the impending ban. TikTok’s lawyers say the social network is ready to “go dark” on January 19 unless the Supreme Court intervenes. For two and a half hours, lawyers for both sides presented their case to a Supreme Court judge. We’ve collected the main arguments made by all sides, explaining what the Judges want, and what might happen next. TikTok’s main argument against banning or divesting TikTok is that it is a burden on TikTok’s speech, so this is a case about US users’ First Amendment rights. Their rights are affected because, within 10 days, they will lose their right to speak, unless they close their business. The law is “content-based,” in that it only applies to social media platforms that host user-generated content, with the exception of business, product, and travel reviews. This effectively eliminates TikTok. The company insists there is no way to get around the fact that this is a content-based speech restriction because the US government is worried that ByteDance could force TikTok to adjust its content mix, for example by making it pro-Chinese or anti-American. Content manipulation is an “impermissible” government interest, as the US government does not regulate other news sources it may not like, such as CNN or Fox News. TikTok could address concerns about the Chinese government using its platform to influence American views by disclosing risks — like warnings on the app. The US government’s data security concerns are not strong enough to justify the law, especially since US TikTok is a subsidiary of Chinese parent company ByteDance and US TikTok user data is hosted on Oracle’s servers in Virginia. The law ignores less restrictive alternatives — it simply prohibits TikTok from sharing sensitive user data with anyone, including China, at the risk of heavy fines, jail terms, or a complete shutdown of the app. This is a new argument TikTok is introducing today, despite years of discussions, DOJ lawyers noted. In addition, the company said, the US government has various ways to address concerns about TikTok with neutral speech laws (which do not affect First Amendment rights). Divestment is not possible on the timeline and is unlikely because China will prevent the export of the algorithm. Even if TikTok has to do it, it will take years and the final product will be very different from the current app. If the government is concerned about China accessing sensitive data of American citizens, it should be concerned about Chinese e-commerce apps like Temu and Shein. The app has access to user activity across apps, including social media, along with names, addresses, credit card information, location data, and more. Creators’ main argument against the ban Image Credit: Marco VDM / Getty Images The law directly limits creators’ First Amendment rights to participate and speak in the “modern public square.” Therefore, the action must be “strictly checked” because American creators can always speak together with foreign speakers or work with foreign publishers. Under the First Amendment, a “mere idea” is not a national security risk. And limiting free speech is what the enemy is doing, not what the US is doing. X. The author must be able to work on any publication that has a certain perspective. TikTok can be used to spread doubts about democracy. It is a “disallowed” government interest. The US government can restrict Americans from associating with terrorist organizations or others that present a clear and present danger, but in this case, the government’s concern is about the impact of TikTok’s content and algorithm. Creators have the right to work with the publisher of their choice, which is TikTok. The ban would prevent creators from using their free speech rights to hire foreign companies to publish their speech. It’s as if the creators aren’t allowed to work for the BBC or any other foreign company. Companies have tried to imitate TikTok and failed, thus showing the importance of the app’s algorithm for its creators. It’s unfair to tell creators to only post their work on other platforms. They are ordinary Americans who rely on the app’s ability to reach others. DOJ’s objection to the ban Image Credit: Andrew Harrer / Bloomberg (opens in a new window) / Getty Images The law does not violate the First Amendment because it does not aim to regulate free speech on platforms or algorithms. But it wants to remove the ability for foreign nations to request American data and exercise control over the platform. The same content may be distributed on the platform post-divestiture. The Chinese government could force ByteDance to secretly turn over data. Much of the data about America goes to China so that the platform can continue its basic operations, and the People’s Republic of China can ask ByteDance to turn over the data. The US government cannot expect ByteDance to act in “good faith.” TikTok poses a risk because if China accesses the personal information of Americans, it will have data on a generation of teenagers who may grow up to hold important offices, such as in the CIA, FBI, or State Department. TikTok acknowledges that there are risks, but that’s why the data is stored on Oracle’s servers in Virginia, he said. ByteDance has been found to be monitoring American journalists. There was a well-publicized incident where ByteDance employees surveilled US journalists using location data. Divestment follows a “long tradition” of prohibiting foreign control of US communications channels and other critical infrastructure. The law does not limit certain types of content, focusing on preventing foreign adversaries from achieving geopolitical goals, such as making Americans disagree and creating chaos “to humiliate the United States.” TikTok cannot be compared to traditional publishers because newspapers do not collect sensitive personal information with the capacity to resend it to foreign adversaries. If the Supreme Court upholds the law, it will ultimately force ByteDance to complete divestment talks and determine how to get the app to work in the United States. Congress figured ByteDance would play a “chicken game” with the legal system while claiming the sale was unreasonable. The justices sitting to the left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. Standing from left are Judges Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson. Image Credit: Fred Schilling, United States Supreme Court Collection What is “TikTok speech?” This is an algorithm that reflects the best mix of content in its view – the essence of TikTok’s editorial discretion combined with an element of moderation. TikTok can’t open this algorithm without losing its business, the company says, so it’s a burden to “say”. How can the court ignore the fact that TikTok is owned by a Chinese company, ByteDance, which is subject to Chinese law? (Especially because the law allows the Chinese government to access and control personal data the company controls?) TikTok’s lawyers argue that ByteDance has “ultimate control” over TikTok and also argue that there is no problem with arguments about First Amendment rights. . If TikTok has a First Amendment right to speech, what level of scrutiny should apply? There was much discussion throughout the hearing about whether this should be subjected to high or intermediate scrutiny, which is the standard of judicial review that, when applied, determines whether First Amendment protections are permissible. Highly scrutinized cases require a higher standard when it comes to the burden of proof, and often do. (Of course, the level of scrutiny that TikTok wants!) TikTok said that the arguments of the speech and the security issues of users’ data should be highly scrutinized, in their opinion. Does TikTok think about its long tradition of preventing foreign control and ownership of media in the US, such as radio and TV? TikTok says this doesn’t matter because its entire history has been a time of “bandwidth scarcity,” where few licenses were available. TikTok and the web are in an era where there is “no shortage,” the company said. Why does TikTok deny the fact that the company must comply with ByteDance’s directives when it comes to algorithms and recommendation engines? The US government says TikTok US cannot set this on its own. TikTok disagreed, saying TikTok is a US subsidiary and “has a choice about the algorithm.” Not only that, but it would be a “bad business decision” to leave. Because of this freedom, TikTok should have its own First Amendment rights, the company’s lawyers said. Does the Chinese government have no control over the recommendation engine, since it says it does not allow forced divestment? No, TikTok said. What this means is that there are parts of TikTok’s source code that include IP that is owned by the Chinese government and will restrict its sale to foreign governments. Why didn’t TikTok think the divestment was possible? Or maybe in the 270 days provided by law? The company says it will be “very difficult” for a while for a number of reasons. One, the divestiture does not allow US engineers to coordinate with Chinese engineers on TikTok’s global team. Also, the divestiture will separate the US content from the global content in the app, and vice versa, which will “fundamentally” change the nature of the app. TikTok said it would take “years” to build a new team of engineers to modify the source code. The US government has no evidence that TikTok has engaged in the manipulation of classified content in the US, but its parent ByteDance has responded to requests from the PRC (the Chinese government) to censor content in China and other regions. Why did TikTok reject this? TikTok’s lawyers say they can’t respond fully because the footage there has been edited, so they don’t know what’s being said. However, the company noted that TikTok’s transparency report shows that it has not removed or restricted content on TikTok in other parts of the world. (And TikTok itself doesn’t operate in China. Its sister app, Douyin.) The law is targeted at ByteDance, not TikTok, so why doesn’t ByteDance open up what resources TikTok needs to continue operating? TikTok lawyers are dancing around this question, arguing that TikTok and to some extent, ByteDance, have a First Amendment right to free speech. And even if the courts disagree, TikTok insists that creators have the right to free speech. The court also wants to know what kind of case or cases TikTok thinks has set any precedent regarding corporate structure regulations that include direct regulation of expressive content. TikTok’s lawyer, Noel Francisco, knows nothing. “I will admit that this is an unprecedented case. I don’t know of any time in American history when Congress has tried to kill a major speech platform,” he said. What could happen next Image Credit: Anatoliy Sizov (opens in new window) / Getty Images If TikTok loses the case, the app will go dark. The app store will remove it and other service providers will stop allowing access. If the Supreme Court issues an early injunction, it will buy TikTok some time to get a lifeline from President-elect Donald Trump, who took office a day after the deadline and asked the Supreme Court to put the law on hold. Trump promised to save the app and was seen dining with TikTok CEO Shou Zi Chew last month. TikTok could get an extension until January 19 to find a buyer, although this is unlikely because TikTok is ready to shut down rather than sell its US assets.

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