In an emergency hearing this past week, the Supreme Court heard arguments from the US Department of Justice and TikTok’s lawyers on whether to overturn, delay, or uphold a law that could lead to a ban on TikTok in the U.S. over the next couple weeks.
Nine months ago, the law, known as the Protecting Americans from Foreign Adversary Controlled Applications Act, swiftly cleared through Congress with blaring bipartisan support and was signed into law by President Biden in April 2024.
Set to take effect on Jan. 19, it requires the popular social media platform to either cut ties with its China-based parent company ByteDance or lose access to web-hosting services and app stores in America. ByteDance, Tiktok, all its subsidiaries, and other applications managed and operated by foreign adversaries such as China, Iran, Russia, and North Korea would be designated as “foreign adversary controlled applications” under this law.
The US Government argued that the vast amount of data TikTok collects on its users could potentially be weaponized by the People’s Republic of China for “espionage or blackmail” purposes or to “advance its geopolitical interests” by “sowing discord and disinformation during a crisis.” The Justice Department affirmed that TikTok may continue dispensing the same content in the same manner it always has if it executes a divestiture from ByteDance.
TikTok’s lawyers, on the other hand, argued that shuttering the app’s operations in the US will silence its speech, as well as the First Amendment rights of its 170 million American users. In their filing, the legal team labeled the potential shutdown “unprecedented.”
For the past 4 years, China has stated that TikTok is not for sale. Back in April, ByteDance made it clear that it has no intentions of selling the platform. In last Friday’s hearing, they reaffirmed that TikTok’s divestiture from ByteDance is impossible.
All signs indicate against the sale of TikTok. For the past 10 months, TikTok has been fighting this ban. This emergency hearing was not the first step. In fact, it was a last resort. In December, a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit sympathized with the government’s warning of a national security risk. In disagreement with Tiktok and the eight creators’ claims, the court rejected their bid for a temporary pause on the ban while seeking SCOTUS’ review.
A group of eight TikTok users challenged the law on the grounds of the First Amendment. They argued that outlawing this platform would deprive them of a “vital communications forum” through which they earn a living and spread ideas. The creators’ lawyers argued that policing the ideas that Americans are exposed to is anathema to our nation’s history and tradition.
Jennifer Safstrom, who directs the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, said TikTok may have more of an uphill battle in making its case because “one of the strengths of the government’s position is that the executive and legislative branches are given a lot of deference with respect to national security.”
“So there’s often a hesitancy for courts to second-guess the political branches on those kinds of national security questions,” Safstrom stated in conversation with CBS News.
What is the validity of these national security concerns? U.S. Solicitor General Elizabeth Prelogar echoed the same concerns that the Chinese government could use our data, such as viewing habits, through coercion and manipulation. The Biden Administration emphasizes the possibility of TikTok’s foreign affiliates being vulnerable to pressure from Chinese officials. The government concedes “that it has no evidence China has ever attempted to do so.”
TikTok’s top lawyer Noel Francisco argued that the app is being unfairly singled out. It contends that its data collection practices and algorithms are not dissimilar to those of leading US-based social media platforms. The legal team also argues that forcing the company to pack up shop sets a dangerous precedent for government suppression of free speech.
This lawsuit, known as TikTok v. Merrick Garland, was heard in the final 2 weeks of the Biden administration. President-elect Donald Trump is against the ban. Trump recently met with TikTok’s chief executive at his Mar-a-Lago estate in Florida and has praised the platform for helping him win over younger voters in the November election.
Additionally, he asked the Court to stay the statute’s effective date to allow his Administration to negotiate a resolution with TikTok that would simultaneously prevent the national shutdown, preserve the First Amendment rights of millions, and address the government’s national security concerns. Interestingly, despite Trump’s strong support of the app, members of his Administration, such as Secretary of State , Republican Sen. Marco Rubio of Florida and his national security adviser pick, Republican Rep. Mike Waltz of Florida have both firmly backed the TikTok ban.
TikTok stated that, on Jan. 19, “..we go dark. Essentially, the platform shuts down unless there’s a divestiture, unless President Trump exercises his authority to extend it.” Essentially, users would be unable to use the app if no resolution is reached by the 19th.
The response to this ban has been predictable, yet profound. Users are seeking to gather on other social media platforms like YouTube and BlueSky. Others are scrambling to download their thousands of Liked and Favorited videos ahead of the deadline. Many were saddened and disappointed at TikTok’s potential demise, yet they also criticized how swiftly that this bill moved through Congress in comparison to the many national issues that seemed to be overlooked on a daily basis.
Many question why TikTok is being singled out. What about Meta? In February 2022, Texas Attorney General Ken Paxton secured a $1.4 billion settlement with Meta to halt the company’s practice of capturing and using the personal biometric data of millions of Texans without the proper authorization and consent required by law. Is this about safety or control? Security or monopoly? Protection or isolation?
At the time of writing, the Supreme Court has not ruled a decision in this case. With the claims of impossibility from TikTok’s lawyer Noel Francisco and the national security concerns of the US government, the future of TikTok, and free speech, is in the air.
This is a developing story. By the time you read this, more updates will be available. Follow the story through your own trusted sources.