Hearing arguments in a momentous clash of free speech and national security concerns, the justices seemed persuaded by arguments that the national security threat posed by the company's connections to China override concerns about restricting the speech either of TikTok or its 170 million users in the United States.
Early in arguments that lasted more than two and a half hours, Chief Justice John Roberts identified as the “main concern” in the case TikTok’s ownership by China-based ByteDance and the parent company's requirement to cooperate with the Chinese government’s intelligence operations.
If left in place, the law passed by bipartisan majorities in Congress and signed by President Joe Biden in April will require TikTok to “go dark” on Jan. 19, lawyer Noel Francisco told the justices on behalf of TikTok.
At the very least, Francisco urged, the justices should enter a temporary pause that would allow TikTok to keep operating. “We might be in a different world again” after President-elect Donald Trump takes office on Jan. 20. Trump, who has 14.7 million followers on TikTok, also has called for the deadline to be pushed back to give him time to negotiate a “political resolution.”
But it was not clear whether any justices would choose such a course. And only Justice Neil Gorsuch sounded like he would side with TikTok to find the ban violates the Constitution.
Gorsuch labeled arguments advanced by the Biden administration’ in defense of the law a “paternalistic point of view.” TikTok, he said, has offered to post a warning that the content could be manipulated by the Chinese government.
“Don’t we normally assume that the best remedy for problematic speech is counter speech?” he asked Solicitor General Elizabeth Prelogar, who defended the law for the Biden administration
A warning wouldn’t be enough to counterbalance the spread of misinformation, Prelogar said.
But Francisco and lawyer Jeffrey Fisher, representing content creators and TikTok users, faced much more skeptical questioning from every other justice.
Justice Brett Kavanaugh focused on U.S. concerns about China accessing information on tens of millions of Americans, including especially teenagers and people in their 20s, with whom TikTok is extremely popular.
“That seems like a huge concern for the future of the country,” said Kavanaugh, whose daughters are in that age range.
Roberts downplayed Fisher’s argument that banning TikTok violates American users’ free speech rights. “Congress is fine with the expression,” Roberts said. “They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok.”
The justices are expected to act within days, almost certainly ahead of the Jan. 19 deadline.
