Justices appear skeptical of TikTok’s arguments: summary of the day
The supreme court heard from lawyers representing TikTok, video creators and the US government on Friday regarding a looming ban of the social media app. TikTok argued that a ban or forced sale amounts to a violation of free speech, while the government said TikTok could be manipulated by the Chinese government to harm Americans.
The justices peppered the lawyers with questions, with TikTok notably getting far more questions than the US government – indicating skepticism from the court.
In his final statement, Noel Francisco, TikTok’s lawyer, implored the justices to enter an administrative stay or a preliminary injunction on the ban, which is slated to go into effect on 19 January.
The justices are expected to rule quickly.
Here’s the highlights of the oral arguments:
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TikTok’s lawyer started his opening statement by telling the Supreme Court that the law isn’t really about a national security threat, “the government’s real target, rather, is the speech itself.”
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Justice Sonia Sotomayor said if the US government perceives a threat, it should be able to act on that: “We have a right to say you can’t do that, you can’t speak.”
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TikTok’s lawyer said if the supreme court doesn’t act, TikTok will “go dark” on 19 January. He said that Donald Trump could intervene once he comes into office on January 20. “It is possible come January 21, 22, we’re in a different world,” he said.
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A lawyer for TikTok content creators told the justices that a ban is tantamount to violating their first amendment rights. The justices followed with a line of questioning that indicated national security harms could outweigh those rights.
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The US government laid out its case honing in on the national security threat, saying in its opening statement that “The Chinese government could weaponize TikTok at any time to harm the United States”.
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Justice Elena Kagan poked holes in the government’s arguments, saying any social media platform could be prone to manipulation. “They’re all black boxes,” she said.
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The US government maintains that TikTok could remain the same if it sold to a non-Chinese company, but that “foreign adversaries are not willing give up control”. Justice Amy Coney Barrett questioned Francisco as to why ByteDance has refused to sell. He answered that it would be impossible to recreate the app without the resources and existing teams of ByteDance.
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Justice Brett Kavanaugh asked the government lawyer if Trump could choose not to enforce the law once he’s sworn into office. “The president has enforcement discretion,” the lawyer said, though she added that it would be concerning if he chose to do so.
Key events
Fran Lawther
There were a small number of protesters outside the supreme court while justices heard arguments in the case. Here are some of the images on the news wires:
Justices appear skeptical of TikTok’s arguments: summary of the day
The supreme court heard from lawyers representing TikTok, video creators and the US government on Friday regarding a looming ban of the social media app. TikTok argued that a ban or forced sale amounts to a violation of free speech, while the government said TikTok could be manipulated by the Chinese government to harm Americans.
The justices peppered the lawyers with questions, with TikTok notably getting far more questions than the US government – indicating skepticism from the court.
In his final statement, Noel Francisco, TikTok’s lawyer, implored the justices to enter an administrative stay or a preliminary injunction on the ban, which is slated to go into effect on 19 January.
The justices are expected to rule quickly.
Here’s the highlights of the oral arguments:
-
TikTok’s lawyer started his opening statement by telling the Supreme Court that the law isn’t really about a national security threat, “the government’s real target, rather, is the speech itself.”
-
Justice Sonia Sotomayor said if the US government perceives a threat, it should be able to act on that: “We have a right to say you can’t do that, you can’t speak.”
-
TikTok’s lawyer said if the supreme court doesn’t act, TikTok will “go dark” on 19 January. He said that Donald Trump could intervene once he comes into office on January 20. “It is possible come January 21, 22, we’re in a different world,” he said.
-
A lawyer for TikTok content creators told the justices that a ban is tantamount to violating their first amendment rights. The justices followed with a line of questioning that indicated national security harms could outweigh those rights.
-
The US government laid out its case honing in on the national security threat, saying in its opening statement that “The Chinese government could weaponize TikTok at any time to harm the United States”.
-
Justice Elena Kagan poked holes in the government’s arguments, saying any social media platform could be prone to manipulation. “They’re all black boxes,” she said.
-
The US government maintains that TikTok could remain the same if it sold to a non-Chinese company, but that “foreign adversaries are not willing give up control”. Justice Amy Coney Barrett questioned Francisco as to why ByteDance has refused to sell. He answered that it would be impossible to recreate the app without the resources and existing teams of ByteDance.
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Justice Brett Kavanaugh asked the government lawyer if Trump could choose not to enforce the law once he’s sworn into office. “The president has enforcement discretion,” the lawyer said, though she added that it would be concerning if he chose to do so.
‘Could the president say that we’re not going to enforce this law?’
Justice Brett Kavanaugh posed a question that has hovered over this case since Trump was elected. Though Congress passed the legislation forcing the ban or sale of TikTok with a bipartisan majority, Trump may direct the Justice Department to take a light approach towards pushing ByteDance towards either outcome. He has filed a request with the court to stay the ban, set to take effect 19 January, at least until he takes office the next day. Trump originated the idea of a US TikTok ban, but he found a large audience there during the 2024 election. Now he favors it and stands against a ban, which he sees as an achievement by Biden.
“Could the president say that we’re not going to enforce this law?” asked Kavanaugh.
US solicitor general Elizabeth Prelogar responded, “The president has enforcement discretion.” She went on to answer that third-party service providers such as Apple and Google, whose app stores control access to TikTok, may decide not to keep it available even if Trump directs the justice department towards non-enforcement, deeming the app too much of a risk. The app’s disappearance could in turn prompt TikTok and ByteDance to take the possibility of a sale seriously, Prelogar said.
A sale of TikTok would stop the ban. The US government said that if ByteDance divests from TikTok, it could save the app. But, “foreign adversaries are not willing give up contro”, US solicitor general Elizabeth Prelogar told the justices. She said requiring divestiture is something that has precedent in the US.
“Divestiture follows a long line of barring foreign control of US communications channels and critical infrastructure,” Preloger said. “No matter what level of First Amendment scrutiny applies, this act is valid because it is tailored to address compelling national security threats.”
TikTok has repeatedly said it cannot be sold from ByteDance. Nonetheless, there are a few potential buyers, including billionaire businessman Frank McCourt, a former owner of the Los Angeles Dodgers baseball team. He’s said he secured $20bn in verbal commitments from a consortium of investors to bid for TikTok. McCourt has not yet spoken with ByteDance, making a sale a far-off possibility.
The ban on TikTok could be delayed by three months if TikTok shows it’s working on a sale. Justice Samuel Alito asked Prelogar if a divestiture would reverse that if TikTok goes dark on 19 January.
“There’s nothing permanent or irrevocable that happens on January 19,” Prelogar said.
TikTok could stay the same if it just sold to a non-Chinese company, US says
If TikTok wants to avoid an outright ban, parent company ByteDance has the option to sell it to another business that is not based in China and therefore under government control there. According to US solicitor general Elizabeth Prelogar, the app could function the exact same way under new ownership, and the US government would have no problem with it.
Justice Ketanji Brown Jackson asked, “Isn’t the whole point of the divestiture requirement that the content on TikTok would be different if it was owned by a different company?”
Prelogar said, “There is nothing in the act that would directly dictate any different mix of content on TikTok. The US subsidiary could use the same algorithm, show the same content, by the same users in exactly the same order. It’s not about trying to interfere with the US subsidiary’s exercise of editorial judgment.”
Justice Elena Kagan cracked a joke about the court’s tech savvy, as she has before
Kagan asked US solicitor general Elizabeth Prelogar about the government’s contention that China could engage in “covert content manipulation” of Americans via TikTok: “What do you mean by ‘covert’, though, with regards to content manipulation? Does ‘covert’ it’s hard to figure out how the algorithm works? We could say that about any algorithm.”
She said of social media’s recommendation algorithms, “They’re all black boxes… On X, on Facebook, what are the new ones, Bluesky? You get what you get, and you think, ‘That’s puzzling.’”
During a case in 2013, Kagan said that supreme court justices still communicated via paper memos.
“The justices are not necessarily the most technologically sophisticated people,” she quipped. “The court hasn’t really ‘gotten to’ email.”
The US government says TikTok is hands-down a national security threat. During opening arguments, US Solicitor General Elizabeth Prelogar said the “Chinese government could weaponize TikTok at any time.” She said that means TikTok could be “covertly” used for harassment, recruitment and espionage.
“The PRC can be pulling the strings here,” Prelogar said.
The justices launched a line of questioning about the use of the word “covert” and asked Prelogar if she was just using that word because China is involved.
“Everybody now knows that China is behind it,” Justice Elena Kagan said, which brought laughs from the crowd.
Kagan said any social media platform could be manipulated; and the public doesn’t know how any of these companies may be pulling the strings. The same could be said for Facebook, Instagram and WhatsApp.
“It’s all a bit of a black box… they’re all black boxes,” Kagan said. “I just don’t get what this ‘covert’ word does for you.”
The US government makes its case for banning TikTok
TikTok’s time for oral arguments before the US Supreme Court has ended. Now it’s time for the US government to make its case for ByteDance to either sell the popular app to a non-Chinese parent company or cut off access to it altogether in the US.
Elizabeth Prelogar, US Solicitor General, said in her opening statement, “The Chinese government could weaponize TikTok at any time to harm the United States.”
She continued, “The Chinese government’s control of TikTok poses a grave threat to national security. No one disputes that the PRC seeks to undermine US interests by amassing vast quantities of sensitive data on Americans and by engaging in covert influence operations. No one disputes that the PRC pursues those goals by compelling companies like ByteDance to secretly turn over data and carry out PRC directives.”
The fact that ByteDance owns TikTok is central to this case. The justices brought up hypothetical situations describing a world where TikTok doesn’t exist and creators can only publish videos directly to Chinese-owned ByteDance. The justices asked the creators’ lawyer, Jeffrey Fisher, if that would change the situation.
Fisher said it’s unusual for the government to choose what entity should be the proper owner of a speech platform in the US. In that case, “Americans have no right to make documentaries with the BBC, they can’t work with Al Jazeera.” You can’t tell creators to just go publish somewhere else, he said.
Justice Elena Kagan took issue with this line of argument, saying that equates foreign corporations having the same first amendment rights as US creators.
Content creators say banning TikTok is tantamount to violating their first amendment rights.
The justices are now hearing from a lawyer representing influencer Brian Firebaugh and a handful of other content creators. Firebaugh is a rancher and US Marine Corps veteran, who uses TikTok to talk about agricultural issues and the ranching community.
“The government doesn’t just get to come in and say ‘national security’ and it’s over,” said Jeffrey Fisher, lawyer for Firebaugh and the other creators. “You have to say what is the real harm.”
Justice Ketanji Brown Jackson said there are real harms that can happen on TikTok. She referenced an earlier line of questioning from Justice Brett Kavanaugh’s saying TikTok could covertly manipulate the data of US citizens. That manipulation, the justices said, could lead to blackmail and turning government workers and others into spies.
Fisher contended that is a different topic, “data security is different than content manipulation,” he said.
Amy Coney Barrett asks why ByteDance won’t sell
The law that led to these arguments before the US Supreme Court holds that ByteDance must either sell TikTok to a non-Chinese owner or curtail access to the app in the US. TikTok has said divestment is “not possible technologically, commercially, or legally”. Beijing has indicated it would not approve such a sale.
Justice Amy Coney Barrett asked TikTok’s lawyer Noel Francisco why ByteDance is so stubbornly refusing to sell: “You keep saying shut down. The law doesn’t say TikTok has to shut down. It says ByteDance has to divest. If ByteDance divested TikTok, we wouldn’t be here, right? If ByteDance was willing to let you go, and willing to let you take the source code with you, wouldn’t that be fine?… Why is it impossible to divest in the 270 days, even assuming the Chinese government hadn’t said you couldn’t?” The law requires divestiture within that timeframe.
Francisco answered, “There are two basic reasons. The first is that the underlying source code takes a team of engineers to create and maintain. It would take us many years to reconstruct a brand new team of engineers to do that. With respect to the sharing of content—in theory, we could send our salesmen around the world to re-sign up all of our users to a new platform.”
The deadline for TikTok to sell or divest is January 19.
Justice Brett Kavanaugh asked TikTok’s lawyer what happens that day if the law is upheld.
“At least as I understand it, we go dark,” Noel Francisco, TikTok’s lawyer said. He said TikTok won’t be available in the app stores. That means the app won’t be available for downloads or updates.
“It essentially is going to stop operating,” he said. “A short reprieve here would make all the sense in the world.”
Francisco brought up the possibility of Donald Trump intervening to halt the ban. Trump will be inaugurated one day after the ban is slated to go into effect.
“It is possible come January 21, 22, we’re in a different world,” Francisco said.
How will TikTok users be affected if the app is banned?
TikTok’s 170 million users in the US will likely still be able to use the app after a ban goes into effect because it is already downloaded on their phones, experts say. But over time, without software and security updates, the app will become unusable.
Some users have begun posting TikTok videos instructing others on how to use virtual private networks (VPNs), which mask an internet user’s location, as a way to circumvent the possible ban.
Content creators who have built businesses from their TikTok followings are preparing for the worst. Nadya Okamoto, who has 4.1 million followers and founded August, a menstrual products brand, said TikTok helped her business grow organically through viral videos. A TikTok ban could force her and other small businesses to spend more on marketing and raise their costs.
“It’s very stressful,” she said. “If TikTok goes away, we’ll be OK, but it is going to be a hard hit.”
The Supreme Court justices explored whether TikTok — as a corporation — should have the freedom of speech.
Chief Justice John Roberts questioned the idea that the ownership of TikTok is directly related to “expressive conduct” and free speech. He said that it may affect the speech of third parties, but he’s not certain it affects the company’s free speech.
Noel Francisco, TikTok’s lawyer, responded, “I’m not sure I know of a time when the government has tried to shut down a speech platform.”
Justice Samuel Alito posed a hypothetical to Francisco, asking if he thought there would be a first amendment issue if a company was “gathering an arsenal of information from US citizens.” Francisco maintained it would still be a first amendment problem.
