TikTok Ban Supreme Court: Arguments and Justices' Questions

TikTok Ban: Supreme Court Hears Arguments

Arguments were presented before the nation's highest court on Friday regarding a law that could result in a nationwide ban of the TikTok platform within the United States.

This legislation, enacted by President Biden in April of 2024, stipulates that ByteDance, TikTok’s parent company, has until January 19th to divest its U.S. assets. Failure to do so will trigger a ban on the application.

The Impending Deadline

The Supreme Court session occurred only nine days prior to the January 19th deadline. This hearing represents TikTok’s final attempt to legally challenge the potential prohibition.

TikTok’s legal counsel indicated the social media network is prepared to cease operations on January 19th should the Supreme Court not issue an intervention.

Key Arguments Presented

During a two-and-a-half-hour session, legal representatives from both sides articulated their positions to the Supreme Court justices.

The core arguments put forth by each party have been summarized, alongside an explanation of the justices’ inquiries and potential future outcomes.

What Was Discussed?

• The Justices sought clarification on the First Amendment implications of the law.
• Concerns were raised regarding national security risks associated with ByteDance’s ownership.
• Arguments centered on whether the law unduly restricts free speech.

ByteDance maintains that the law violates the First Amendment rights of TikTok’s users.

The government contends that the ban is necessary to protect national security interests, citing potential data access by the Chinese government.

The Supreme Court’s decision will have significant ramifications for the future of TikTok in the United States.

TikTok’s Core Arguments Against the Proposed Ban

A potential ban or forced divestiture of TikTok infringes upon the free speech rights of its users, framing this legal challenge as a First Amendment issue. The company contends that, without a resolution within ten days, its ability to operate and communicate will be curtailed.

Content-Based Restrictions

The legislation is characterized as “content-based” due to its specific application to social media platforms featuring user-generated content, with exceptions made for business, product, and travel reviews. This distinction, TikTok argues, effectively targets the platform directly.

The company emphasizes that the government’s apprehension regarding ByteDance’s potential to manipulate content – perhaps by promoting pro-Chinese perspectives or anti-American sentiments – constitutes a restriction on speech. TikTok asserts that such content manipulation is not a permissible justification for government intervention, drawing a parallel to the lack of regulation imposed on established news organizations like CNN or Fox News.

Mitigation Through Disclosure

TikTok proposes that concerns regarding potential Chinese government influence could be addressed through a risk disclosure mechanism. This would involve an in-app warning informing users about the possibility of such influence.

Data Security Concerns Addressed

The U.S. government’s data security concerns are deemed insufficient to warrant the proposed law, particularly given the structure of U.S. TikTok. It operates as a subsidiary of ByteDance, and user data is stored on Oracle servers located in Virginia.

Less Restrictive Alternatives

TikTok argues that a less restrictive approach exists: prohibiting the platform from sharing sensitive user data with any entity, including those in China, under threat of substantial penalties, imprisonment, or complete app shutdown. This argument was recently introduced by TikTok, despite extensive prior discussions.

Furthermore, the company suggests the U.S. government possesses various speech-neutral legal avenues to address its concerns regarding TikTok, without infringing upon First Amendment rights.

Divestiture Impracticality

A complete divestiture is presented as unfeasible within any reasonable timeframe, and potentially impossible due to Chinese regulations preventing the export of its core algorithm. Even if a divestiture were pursued, the resulting product would likely differ significantly from the current TikTok application, and the process would span years.

Broader Concerns Regarding Data Collection

If the government is focused on protecting American citizens’ sensitive data, TikTok suggests scrutiny should extend to other Chinese-owned e-commerce applications like Temu and Shein. These platforms gather extensive user data, including activity across various apps, personal identifiers, financial information, and location details.

Key Arguments Presented by Creators Against the Proposed Ban

Creators opposing the potential ban have put forth several arguments centered around First Amendment rights. They contend the legislation infringes upon their ability to express themselves and engage with audiences in the contemporary digital landscape.

First Amendment Rights and the “Modern Public Square”

A central claim is that the law directly limits creators’ First Amendment rights to participate and communicate within what is now considered the “modern public square.” Due to this restriction, the creators argue the law should be evaluated under “strict scrutiny.”

Historically, American creators have consistently been permitted to collaborate with international entities and disseminate their work through foreign publishers.

Ideas as Protected Speech

The argument continues that simply holding an idea does not present a legitimate national security threat. Restricting the freedom of expression is a tactic employed by adversarial nations, not a practice consistent with U.S. values.

Publisher Viewpoint and Creator Freedom

Creators assert that the ownership and editorial stance of a media outlet – whether it be a print publication or an online platform like Fox News, MSNBC, or X – defines its perspective.

They should retain the freedom to collaborate with any publisher, regardless of its particular viewpoint.

Concerns About Democratic Influence

While acknowledging the potential for TikTok to be utilized for the dissemination of disinformation that could undermine democratic processes, creators maintain this concern represents an “impermissible” governmental interest.

The U.S. government is justified in restricting associations with terrorist organizations or entities posing an immediate danger, but the current concerns focus on the influence of TikTok’s content and algorithmic functions.

Right to Choose a Publisher

Creators emphasize their right to select their preferred publishing platform, with TikTok being that choice for many.

The proposed ban would effectively deny them the ability to exercise their free speech rights by preventing collaboration with a foreign company for the purpose of publishing their content.

This is likened to prohibiting creators from working with international broadcasters like the BBC.

The Uniqueness of TikTok’s Algorithm

It has been noted that numerous attempts to replicate TikTok’s functionality have been unsuccessful. This highlights the significance of the app’s algorithm in enabling creators to reach a broad audience.

Instructing creators to simply migrate to alternative platforms is considered unfair, as they are reliant on the app’s unique capabilities to connect with others. These individuals are American citizens who depend on the platform for their livelihood and expression.

The Department of Justice’s Case for the TikTok Ban

The DOJ argues that the legislation does not infringe upon First Amendment rights. The focus isn't on regulating speech or the platform’s algorithm, but rather on preventing foreign data access and control.

Key Arguments Presented by the DOJ

• First Amendment Compliance: The law is designed to address national security concerns, not to censor content. Similar content distribution would remain possible even after a potential divestiture.
• Data Security Concerns: The Chinese government possesses the authority to compel ByteDance to secretly transfer user data.

A substantial amount of data pertaining to American users is routinely transmitted to China for the platform’s operational functions. The People’s Republic of China could legally demand ByteDance to provide this data.

• National Security Risk: Access to American user data presents a risk, particularly concerning the personal information of young people.
• Potential for Influence: Data on a generation potentially holding future key positions – within agencies like the CIA, FBI, or State Department – could be exploited.

TikTok acknowledged this risk, but maintains that data storage on Oracle servers located in Virginia mitigates the issue.

Prior Instances of Surveillance

ByteDance’s past surveillance activities were highlighted. Specifically, the DOJ referenced a publicized incident involving ByteDance employees monitoring U.S. journalists using their location data.

• Historical Precedent: The law aligns with a longstanding tradition of restricting foreign control over U.S. communication channels and vital infrastructure.
• Geopolitical Concerns: The legislation aims to prevent a foreign adversary from pursuing geopolitical objectives.

These objectives include fostering discord among Americans and creating instability to undermine the United States.

Distinction from Traditional Publishers

The DOJ emphasized that TikTok differs significantly from traditional publishing entities. A newspaper, for example, does not amass sensitive personal data with the capability of transmitting it to a foreign government.

• Divestiture as a Resolution: Upholding the law would compel ByteDance to actively pursue divestment options.
• Anticipated Legal Strategy: Congress anticipated ByteDance would engage in a legal challenge while simultaneously asserting the implausibility of a sale.

The expectation is that the Supreme Court’s decision will ultimately force ByteDance to finalize divestment negotiations and secure a pathway for continued operation within the United States.

Key Questions from the Supreme Court Regarding TikTok

During oral arguments, the Supreme Court justices posed several critical questions to TikTok’s legal representation. These inquiries centered on the platform’s First Amendment rights, its relationship with its parent company ByteDance, and the feasibility of a forced divestiture.

Understanding "TikTok Speech"

Justices sought clarification on the definition of “TikTok speech.” This refers to the platform’s algorithm, which curates content for users. Essentially, it’s a combination of TikTok’s editorial choices and its content moderation practices. TikTok maintains that restricting its algorithm constitutes a restriction on its First Amendment rights.

Concerns About ByteDance and Chinese Law

A central concern raised by the court was TikTok’s ownership by ByteDance, a Chinese company. The justices questioned how the court could disregard the potential for the Chinese government to access and control user data, given Chinese laws permitting such access. TikTok’s counsel disputed ByteDance’s “ultimate control” and argued this was irrelevant to First Amendment considerations.

Level of Scrutiny for First Amendment Rights

The level of judicial scrutiny applicable to TikTok’s claimed First Amendment rights was a significant point of debate. Discussions revolved around whether the case warranted “high scrutiny” or “intermediate scrutiny.” Higher scrutiny demands a stronger justification for government restrictions, often leading to rulings in favor of free speech. TikTok advocated for the application of high scrutiny to both its speech argument and user data security concerns.

Historical Precedent and Media Ownership

TikTok argued that historical precedents regarding foreign control of U.S. media – such as radio and television – are not applicable. The company asserted that these precedents stemmed from a period of “bandwidth scarcity,” where licenses were limited. In contrast, TikTok and the internet operate in an environment of “no scarcity.”

Control Over the Algorithm and Recommendation Engine

The U.S. government contends that TikTok U.S. lacks independent control over its algorithm and recommendation engine. TikTok countered this claim, asserting that it, as a U.S. subsidiary, “does have a choice” regarding the algorithm. Furthermore, abandoning the algorithm would be a detrimental business decision, reinforcing its claim to independent First Amendment rights.

Chinese Government Influence on the Recommendation Engine

Justices questioned whether the Chinese government exerts control over TikTok’s recommendation engine, particularly given its opposition to a forced divestiture. TikTok responded that the Chinese government’s stance relates to intellectual property rights embedded in the platform’s source code, restricting its sale to foreign entities.

Feasibility of Divestiture

TikTok argued that a complete divestiture within the legally mandated 270 days is “exceedingly difficult.” The company cited challenges in coordinating between U.S. and Chinese engineers and the potential fragmentation of content between the U.S. and global versions of the app. Constructing a new engineering team and converting the source code would require “many years,” according to TikTok.

Content Manipulation and Censorship

The U.S. government presented evidence of ByteDance responding to demands from the Chinese government to censor content in China and other regions. TikTok’s counsel acknowledged redactions in the record, hindering a full response. However, TikTok maintains its transparency reports demonstrate no content removal or restriction on the U.S. platform. It’s important to note TikTok itself does not operate within China; its sister app, Douyin, does.

ByteDance and Open-Sourcing a Solution

The court explored whether ByteDance could resolve the issue by open-sourcing the necessary components of TikTok, allowing it to continue operating. TikTok’s legal team sidestepped a direct answer, reiterating that both TikTok and ByteDance possess First Amendment rights. They also argued that TikTok’s creators have independent speech rights.

Lack of Precedent

Justices inquired about any existing legal precedents involving the regulation of corporate structures that directly impacted expressive content. TikTok’s lawyer, Noel Francisco, conceded the case was “pretty unprecedented,” stating he was unaware of any similar historical instances where Congress attempted to shut down a major speech platform.

Potential Outcomes of the TikTok Supreme Court Case

The Supreme Court’s decision regarding TikTok’s fate carries significant implications. A ruling against TikTok could lead to the app’s immediate removal from app stores.

Scenario 1: TikTok Loses the Case

Should TikTok be unsuccessful in its legal challenge, the application will effectively cease to operate in the United States. This means app stores will be compelled to remove it, and access will be blocked by other service providers.

Scenario 2: Preliminary Injunction Granted

A preliminary injunction issued by the Supreme Court would provide TikTok with a temporary reprieve. This would grant the company additional time, potentially allowing for intervention from the incoming presidential administration.

President-elect Donald Trump, who assumes office the day following the current deadline, has requested the Court to pause the law. He has publicly stated his intention to preserve the app and recently met with TikTok CEO Shou Zi Chew.

Scenario 3: Extension for a Potential Sale

TikTok might be granted an extension to the January 19th deadline to pursue a potential buyer for its U.S. assets. However, this outcome appears improbable.

TikTok has indicated a willingness to shut down the app rather than be forced to divest its U.S. operations. This stance suggests a sale is not a preferred solution.

Key takeaway: The future of TikTok in the U.S. hinges on the Supreme Court’s decision and potential political developments.