“Whether you call [the law] a divesture or a ban, one thing is clear: It’s a burden on TikTok’s speech, so the First Amendment applies,” lawyers for TikTok argued to the US Supreme Court on Friday.
Today’s Supreme Court hearings mark the beginning of the end of TikTok’s long legal battle against the US government. The hearing began at 10 a.m. ET and lasted a little over two hours. During that time, lawyers for TikTok and US solicitor general Elizabeth Prelogar presented their preliminary arguments and answered questions from the Justices.
Similar to previous court proceedings, the US government argued that the popular video app could be a threat to national security and used by the Chinese government to spy on Americans. TikTok was steadfast in its denial of those accusations, saying the 2024 law — passed by wide margins in both chambers of Congress and signed into law by President Biden — infringes on the First Amendment rights of TikTok’s 170 million active US users. The hearings come just nine days before the looming divest-or-ban deadline on Jan. 19.
Watch this: US vs. TikTok: What Happens Next
TikTok’s lawyer Noel Francisco kicked off the hearing. The Justices asked many questions to understand the relationship between TikTok US and its China-based parent company — specifically, what the risk of “covert content manipulation” is and what that exactly means. For the purposes of the hearing, the phrase referred to the potential for politically-motivated actors to adjust TikTok’s algorithms to change the videos users see.
One sticking point across the hearing was the secret evidence submitted by the US government, something that was left unresolved in lower court proceedings. While the Justices questioned Francisco, one Justice’s question confirmed that in that evidence, the US government “admits that it has no evidence that TikTok has engaged in covert content manipulation in this country,” but the two sides disagree about whether ByteDance has “responded to PRC demands to censor content outside of China.”
Prelogar wrapped up the hearing, saying in her opening statement, “TikTok’s immense data set would give the PRC a powerful tool for harassment, recruitment and espionage.” She brought up concerns that it wasn’t just users’ data at risk, but also other people in their contacts, and expressed a concern that it was teens and young kids’ data in particular that was at risk.
One of the more notable moments of the hearing is when Prelogar argued that ByteDance would use the social platform to sow discord among Americans and distract them from Chinese manipulation, to which Chief Justice Roberts replied, “ByteDance might be, through TikTok, trying to get Americans to argue with each other? If they do, I say they’re winning.”
What happens next with TikTok?
The next step is for the Court to deliberate and then ultimately rule on the case. We don’t know exactly when it will issue its decision.
If the Supreme Court decides the law does violate the First Amendment, the Court could strike it down. If the Supreme Court finds the law does not violate the First Amendment and upholds it, TikTok would only have a few days to find a US buyer for the app to comply with the Jan. 19 deadline. ByteDance said it is prepared to shut down the app in the US if the Court rules against them, with Francisco saying TikTok will “go dark” on Jan. 19.
The Jan. 19 deadline is also the day before Trump is set to be inaugurated. President-elect Trump has recently signaled that he is no longer opposed to a TikTok ban, a stark reversal from his stance during his first term. Last week, lawyers for Trump filed an amicus brief in the case. They didn’t take a side, but instead asked the court to delay the ban to give Trump time to come up with a “political resolution,” though the brief didn’t offer any concrete details on what that would look like. Either way, Trump won’t be able to do anything until he’s inaugurated as president on the 20th, so there could be a period of service blackout.
