The U.S. Supreme Court heard arguments Friday in a First Amendment challenge to Congress's ban of TikTok. During oral arguments, counsel for TikTok Inc. and ByteDance Ltd. argued that the law would shut down one of America's most popular speech platforms used by 170 million Americans.
The Protecting Americans from Foreign Adversary Controlled Applications Act requires TikTok to cease U.S. operations by January 19, 2025, unless ByteDance divests ownership. The law specifically names ByteDance and TikTok for immediate restrictions and establishes separate standards for other foreign-controlled applications.
During oral arguments, the Solicitor General defended the law based on two concerns: that China could weaponize TikTok to harm the United States and that TikTok collects unprecedented amounts of personal data about Americans.
Justices questioned the parties about the scope of Congress's authority and the factual record. Justice Thomas asked whether the restriction on ByteDance's ownership could be converted into a restriction on TikTok's speech. Justice Gorsuch questioned TikTok’s counsel on whether the algorithm was controlled by ByteDance, a Chinese entity, or TikTok U.S.
TikTok's counsel argued that TikTok, Inc., as a U.S. company, “does have a choice over the algorithm,” but that it would be an “incredibly bad business decision for them to abandon this algorithm.” The government countered that ByteDance remains completely in control of developing the source code for all components, including the recommendation engine.
The Solicitor General emphasized that the Chinese government's control of TikTok poses a grave threat to national security, arguing that the PRC could command ByteDance to comply with any request for data. TikTok's counsel responded by comparing the situation to a hypothetical involving the Washington Post, arguing that the government could not force Jeff Bezos to sell the newspaper even if China gained leverage over his international empire.
Chief Justice Roberts questioned whether Congress was concerned about TikTok's expression, noting that the remedy is not to stop TikTok but to stop Chinese control of TikTok. Justice Kagan raised a historical analogy comparing the case to mid-20th century concerns about the Soviet Union and the Communist Party of the United States, questioning whether Congress could have required the Communist Party U.S.A. to divest from international Communist organizations.
The Court's decision will determine whether Congress can require divestiture of a specific speech platform based on potential foreign influence. A decision is expected before the law takes effect on January 19, 2025.
