Supreme Court casts doubt on TikTok’s free-speech defense as shutdown law is set to take effect

WASHINGTON —  The Supreme Court justices sounded highly skeptical Friday of TikTok’s free-speech defense, signaling they are not likely to strike down the law that could shut down the popular video site the day before President-elect Donald Trump takes the oath of office.

The justices, both conservative and liberal, said Congress was concerned with the Chinese ownership of TikTok and the threat to national security. They also said the law in question was not an effort to restrict the freedom of speech.

“Congress doesn’t care about what’s on TikTok,” said Chief Justice John G. Roberts Jr. “Congress is not fine with a foreign adversary gathering all this data on 170 million Americans. ... Are we supposed to ignore the fact that its parent company is subject to doing intelligence work for the Chinese government?”

He said he knew of no court precedent that would call for striking down such a law on 1st Amendment grounds.

In their comments and questions, all the justices appeared to agree.

“This law is targeted at a foreign corporation that doesn’t have 1st Amendment rights,” said Justice Elena Kagan.

“There is a long tradition of preventing foreign ownership or control of media in the United States,” added Justice Brett M. Kavanaugh.

Lawyers for TikTok and many of its creators described the law as an unprecedented attack on the 1st Amendment.

“Shuttering the platform will silence the speech of 170 million monthly American users,” they said.

But Congress and the Biden administration said the Chinese-owned platform gives the government in Beijing access to “vast swaths of data about tens of millions of Americans,” which it “could use for espionage or blackmail.”

The justices agreed to decide TikTok’s 1st Amendment appeal on a fast-track schedule, and they are likely to issue a ruling within a few days.

None of them sounded ready to declare the law unconstitutional.

In recent years, the justices have often struck down federal regulations, usually on the grounds that Congress had not authorized such a far-reaching rule.
But they are wary of striking down an act of Congress, particularly one based on a claim of national security.

The shutdown law is due to take effect on Jan. 19.

“We go dark. The platform shuts down,” TikTok attorney Noel Francisco told the court, if it did not act.

Even if the justices were not ready to strike down the law as unconstitutional, he said they should issue an order that temporarily delays the law from taking effect.

“A short reprieve would make all the sense in the world,” he said, because it would give Trump time to try to work out a deal that could keep TikTok in operation.

In 2020, Trump, in his first term, issued an executive order requiring TikTok to separate itself from Chinese ownership, but it was blocked by courts.

President Biden and Congress took up the issue after receiving classified briefings about the potential threat from ByteDance, the Chinese-controlled company that operates TikTok.

The administration tried and failed to work out a deal that would separate TikTok from Chinese control.

The shutdown law had the support of large bipartisan majorities in the House and Senate, and Biden signed it in April. By its terms the law was due to take effect in 270 days, on Jan. 19.

If the law goes into effect, it would be illegal for service providers such as Google or Apple to “distribute or maintain ... a foreign advisory controlled application” in the United States. Violations could result in huge civil fines.

TikTok’s last and best hope may now rest with Trump. He changed his view last year about TikTok, which he said helped him reach young voters.

Two weeks ago, he filed a brief urging the court to stand aside and allow him to make a deal with TikTok’s owners.

None of the justices asked about Trump’s intervention.

The law allows for a one-time extension of up to 90 days if the new president determined there has been “significant progress” toward arranging a “qualified divestiture.”

It is not clear whether Trump could invoke that provision to delay the law from taking effect.

On Wednesday, an investor group spearheaded by former Dodgers owner Frank McCourt submitted an offer to ByteDance for TikTok’s U.S. business. Terms of the deal were not disclosed, and a representative for the group, known as the People’s Bid for TikTok, declined to discuss the state of negotiations with the Chinese company on Friday.

“Our assumption is the Supreme Court will uphold the law, and at that point the only way to preserve TikTok under law will be a divestiture,” said Tomicah Tillemann, president of Project Liberty, a New York-based organization that assembled the bid.

Tillemann said the investment group would rebuild the platform in a way that prioritizes the privacy of TikTok users.

“What we are focused on is providing a clear path forward that will allow for the preservation of the dynamic, vibrant community that is TikTok under American ownership,” Tillemann said.