Getty ImagesThe Supreme Court appears poised to uphold a law banning TikTok in the United States on national security grounds unless its China-based parent company sells the platform before a Jan. 19 deadline.
The court’s nine justices heard from lawyers representing TikTok and content creators that the ban would violate free speech protections for the platform’s more than 170 million users in the United States.
The U.S. government has argued that without sales, TikTok could be used by China as a tool for espionage and political manipulation.
A decision from the highest court must be rendered within the following days. President-elect Donald Trump – who returns to the White House in just over a week – now opposes the ban.
The law requires TikTok’s parent company, ByteDance, to sell it in the United States or cease operations on January 19. The company said it would not sell the short-form video platform.
Congress passed the law with the support of both the Democratic and Republican parties — a moment that marked the culmination of years of concern over the wildly popular platform, known for its viral videos and appeal among young people.
The legislation does not ban use of the app, but would require tech giants such as Apple and Google to stop offering it and ban updates, which analysts say would eventually kill it .
TikTok has repeatedly denied any potential influence from the Chinese Communist Party and said the law violates its users’ First Amendment rights to free speech.
Noel Francisco, former US solicitor general, representing the platform, pointed out that banning the speech platform most popular with Americans could also open the door to a dangerous form of censorship.
He argued that “the government cannot restrict speech in order to protect us from speech.”
“That’s precisely what this law does from start to finish.”
A representative of platform creators argued that they should be free to use the editor of their choice.
Jeffrey L Fisher, a Stanford University law professor representing the creators who filed the lawsuits, told the court Friday that the country has historically faced “ideological campaigns led by foreign adversaries.”
But he added that under the First Amendment, mere ideas do not pose a threat to national security.
Justice Department lawyer Elizabeth B Prelogar told the court that ByteDance’s ties to the Chinese government made it a national security risk.
She told the court that Beijing “could use TikTok as a weapon to harm the United States at any time.”
During nearly three hours of arguments, the nine justices returned repeatedly to the national security concerns that gave rise to the law, while also examining free speech issues.
“Are we supposed to ignore the fact that the ultimate parent company is, in fact, subject to intelligence work on behalf of the Chinese government?” Conservative Chief Justice John Roberts asked TikTok’s lawyer, Mr. Francisco.
Justice Brett Kavanaugh analyzed concerns raised by the U.S. government about the data the app collects on its users and how that data could be used.
These risks appear to be a “great concern for the future of the country,” he said.
The Trump question
In December, US President-elect Donald Trump urged the court to delay its decision until he returned to the White House to allow him to seek a “political solution” to resolve the issues at hand.
TikTok’s lawyer told the court on Friday that he believes the platform will “go dark” on January 19 without intervention.
Ms Prelogar, defending the US Department of Justice, said “nothing permanent” was expected to happen that day and there was still time to sell.
Forcing the app to go dark could be just the “nudge” ByteDance needs to seriously consider a sale, she said.
“This will fundamentally change the landscape in terms of what ByteDance might consider,” she said, likening the situation to a “game of chicken” and one in which the United States should not “blink first.” .
After the hearing, legal observers predicted that the Supreme Court justices appeared influenced by the government’s concerns.
“Traditionally, the Supreme Court has been willing to deviate somewhat when national security is at stake,” said Carl Tobias, a law professor at the University of Richmond.
“I hope that the judges will mostly side with the government,” he added.
Jacob Hubert, an attorney and president of the Liberty Justice Center — which represents BASED Politics, an Internet content creator — said it was still difficult to predict how the court would rule.
But he says the ban would violate the free speech of millions of Americans — an argument he says has actually been made by TikTok’s lawyers.
“It’s not about China’s rights, it’s not about the Communist Party’s rights,” he said. “This is about the right of Americans who use TikTok to talk, in large part, with other Americans.”
More than a hundred people braved freezing conditions in Washington DC to attend the hearing in person.
Chloe Joy Sexton — one of the TikTok creators named in the complaint — said the platform has brought “financial independence” to many creators, including many mothers.
“A ban on TikTok would place these women, myself included, in real financial peril,” she told reporters. “It would destroy both my business and the community that means so much to me.”
Danielle Ballesteros, a student at UC San Diego, said she had been waiting outside the field since 6:30 a.m. local time.
“I feel like TikTok doesn’t deserve to be banned,” she told BBC News.
While admitting to using it “probably too much”, she believes that the application is an important source of information for her generation.
TikTok is already banned on government devices in many countries, including the UK. It faces more comprehensive bans in some countries, including India.
Last December, a the three-judge appeals court ruling upheld the lawhighlighting China’s habit of acting through private companies and saying the measure was justified as part of a “broader effort to counter a well-founded threat to national security posed” by the country.
