Skeptical Supreme Court Justices Consider TikTok’s Fate Amid Ban Threat

The U.S. Supreme Court engaged in a pivotal discussion on Friday regarding the future of TikTok in America, questioning the necessity of intervening in a law that mandates the sale of the platform within nine days. The justices indicated that ByteDance, TikTok’s parent company, may not possess First Amendment rights due to its status as a foreign entity.

Representatives for ByteDance and TikTok users encountered rigorous scrutiny from justices across the ideological spectrum. These discussions centered around whether any parties, other than ByteDance itself, would face rights restrictions under the law. This bipartisan legislation, approved by Congress and signed by President Biden, requires ByteDance to divest from TikTok by January 19 or face a ban from American app stores.

The controversy hinges on intellectual property, particularly the algorithm that dictates the content TikTok users encounter. Should ByteDance be forced to sever ties, TikTok would lose access to this proprietary technology, which the company claims is a form of speech.

The justices voiced concern that only ByteDance would suffer direct consequences from the law, with Chief Justice John Roberts emphasizing that the legislation aims to curb potential control by the Chinese Communist Party over user data and the platform itself, thereby classifying the Chinese government as a foreign adversary.

Roberts stated, “Congress doesn’t care about what’s on TikTok, they don’t care about the expression.” He noted that the law’s focus is not on the content itself but on preventing Chinese control over TikTok. Lawmakers previously expressed that ByteDance’s ties to Chinese national security laws pose a data security risk to American users.

Justice Elena Kagan highlighted that the law mainly impacts ByteDance, not its U.S. subsidiary. She pointed out that separating TikTok from its Chinese parent could allow it to develop an independent algorithm, enabling competition with other platforms such as Meta’s Instagram.

“The statute only says to this foreign company, ‘Divest or else,’ and leaves TikTok the ability to pursue its own algorithm,” Kagan explained.

Noel Francisco, the attorney representing TikTok and ByteDance, contended that the law’s true purpose is to prevent government manipulation of content, which he argued infringes upon the Constitution. He insisted that the government’s motives extend beyond national security, asserting that it is attempting to control speech on the platform.

Francisco reflected on the implications of the law, stating it could lead to the suppression of TikTok — a platform that boasts around 170 million users in the U.S. He urged the court to consider whether the law imposes a “content-based” burden on speech, which he believes it does.

In response, Jeffrey Fisher, representing TikTok creators, argued that any efforts to regulate content based on national security concerns violate the First Amendment. He remarked that such a motive could render the law unconstitutional since it seeks to control speech deemed “anti-democracy” or critical of the government.

Following the arguments, legal representatives for TikTok expressed optimism about their position. They noted the engagement from the justices, highlighting the case’s significance not just for TikTok users, but for First Amendment rights overall.

Francisco also clarified the ownership structure of ByteDance, indicating that while 21% is owned by a Chinese national, the company is incorporated in the Cayman Islands and is not wholly owned by China. He further asserted that TikTok’s algorithm is stored on servers located in Virginia.

Users of the platform shared personal anecdotes, emphasizing the role TikTok has played in their entrepreneurial endeavors. Chloe Joy Sexton from Memphis recounted how TikTok facilitated her baking business, leading to an opportunity to publish a cookbook and ship her products globally.

Last updated 2:03 p.m., Jan. 10, 2025