Supreme Court casts serious doubt on TikTok’s free speech arguments

Supreme Court justices cast serious doubt on TikTok’s free speech arguments in a case that will decide the future of an app that is used by 170 million Americans. TikTok is fighting a law passed by Congress last year that requires its parent company to sell the app or be prohibited from operating in the United States.

Unless the justices strike down the law, or delay its implementation, the most popular short-form video app in the country will disappear from app stores in nine days.

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The justices were skeptical from the very beginning, when Justice Clarence Thomas asked the app’s lawyers, “What is TikTok’s speech?” 

The attorneys argued their speech is their algorithm, which suggests content for users based on their personal traits, preferences and consumption habits. Thomas responded by saying they are converting the restriction on ByteDance’s ownership of the app as TikTok’s speech.

Chief Justice John Roberts pointed out that the free speech argument does not address Congress’ stated intention for passing the law.

“It seems to me that you’re ignoring the major concern here of Congress which was Chinese manipulation of the content and acquisition and harvesting of the content,” Roberts said. 

“I don’t think you are supposed to ignore that at all, but I also don’t think that it changes the analysis,” said Noel John Francisco of Jones Day, which represents TikTok.

“I don’t know if it’s directly affecting the company’s speech or the speech of third parties,” Roberts said.

The law is often described as a TikTok ban, although that’s not technically accurate. The law prohibits distributing, maintaining or providing internet hosting services for an app that’s under the control of a foreign adversary. In this case, the app is TikTok, which is owned by ByteDance, a company based in China, the foreign adversary.

If ByteDance sold the app to an American company, TikTok would be allowed to operate in the United States exactly as it does today.

“TikTok can continue to operate on its own algorithm, on its own terms, as long as it’s not associated with ByteDance. So isn’t this really just all about association?” Justice Ketanji Brown Jackson proposed to TikTok’s attorneys.

Jackson then cited arguments from government attorneys who said the real problem is foreign adversaries manipulating content that is shown to Americans.

“Are you saying those are not compelling government interests?” Jackson asked. 

“I am 100% saying that content manipulation is not just not a compelling governmental interest, it is an impermissible governmental interest,” Francisco said.

Arguing on behalf of the federal government, Solicitor General Elizabeth Prelogar said the law has a “laser-like focus” on the national security threat.

“No one disputes that the [People’s Republic of China] seeks to undermine U.S. interests by amassing vast quantities of sensitive data about Americans, and by engaging in covert influence operations,” Prelogar said. “And 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 justices also pointed out holes in the government’s case, particularly the argument that content manipulation would be covert.

“If you just mean what’s covert is the fact that there’s China behind it, I mean, honestly, really, like everybody does know now that there’s China behind it,” Justice Elena Kagan said.

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Justice Gorsuch questioned Prelogar’s reasoning that manipulated content could be harmful.

“If that’s true, then wouldn’t that be true for all social media companies for all content,” Justice Gorsuch asked. 

If the TikTok ban takes effect Jan. 19, current users will still have the app on their phone and will likely be able to use it.

The law prohibits new downloads and updates. So it should keep working for current users until they update their phone, which will make it no longer compatible with the phone’s operating system, at which point it will stop working.