The Supreme Court on Friday debated a law that could determine the fate of TikTok, a wildly popular social media platform that has about 170 million users.
Congress passed the law out of concern that the app, whose owner is based in China, is susceptible to Chinese government influence and poses a national risk. The move would effectively stop TikTok from operating in the United States unless its owner, ByteDance, sells it by January 19.
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The court seemed likely to uphold the law.
While judges across the ideological spectrum asked tough questions of both sides, the overall tone and thrust seemed to suggest greater skepticism toward arguments by lawyers for TikTok and its users that the First Amendment prevented Congress from passing the law.
The question opened with two conservative members of the court, Justice Clarence Thomas and Chief Justice John G. Roberts Jr., suggesting that it was not TikTok, an American company, but its Chinese parent company, ByteDance, that was directly affected by the law. .
Another conservative, Justice Brett M. Kavanaugh, focused on the risk that the Chinese government could use the information that TikTok is collecting on tens of millions of American teenagers and twenty-somethings to “develop spies, turn people in, blackmail people” when they grow up and go. to work for national security agencies or the military.
Justice Elena Kagan, a liberal, asked why TikTok couldn’t create or buy another algorithm instead of using ByteDance’s.
And another liberal, Justice Ketanji Brown Jackson, said she believed the law was less about speech than association. She suggested that banning TikTok from associating with a Chinese company was similar to banning Americans from associating with foreign terrorist groups on national security grounds. (The Supreme Court has upheld it as constitutional.)
However, some judges were skeptical about a major part of the government’s justification for the law: the risk that China could “covertly” force TikTok to manipulate content shown to Americans or collect user data to achieve its geopolitical goals.
Both Justice Kagan and Justice Neil M. Gorsuch, a conservative, pointed out that everyone now knows China is behind TikTok. They expressed interest in whether the government’s interest in preventing “covert” use of the platform by a foreign adversary could be achieved in a less burdensome way, such as adding a label warning users of that risk.
Lawyers for TikTok and its users argued that the law is unconstitutional.
Two lawyers argued that the law violates the First Amendment: Noel Francisco, who represents both TikTok and ByteDance, and Jeffrey Fisher, who represents TikTok users. Both suggested that concerns about the Chinese government’s potential manipulation of the information American users see on the platform were insufficient to justify the law.
Mr. Francisco argued that the government in a free country “has no valid interest in preventing foreign propaganda” and cannot constitutionally try to keep Americans from being “convinced by Chinese disinformation.” This is targeting the content of the speech, which the First Amendment does not allow, he said.
Mr. Fisher argued that fears that China could use its control over the platform to promote posts that cast doubt on democracy or push pro-China and anti-American views were a weaker justification for interfering with free speech than concerns about terrorism. foreign.
“The government can’t just say ‘national security’ and the case is over,” Mr. Fisher said, adding, “It’s not enough to say ‘national security’ — you have to say ‘what is the real harm?'”
The Biden administration defended the right of Congress to pass the law.
The solicitor general, Elizabeth B. Prelogar, argued that Congress had the legal authority to pass the statute and that it did not violate the First Amendment. She said it was important to recognize that the law leaves speech on TikTok unrestricted once the platform is freed from foreign control.
“The same conversation that’s happening on TikTok can happen after the sale,” she said. “The act does not regulate this at all. So it doesn’t mean you can’t have pro-China speech, you can’t have anti-American speech. It’s not adjusting the algorithm.”
She added: “TikTok, if it was able to do that, could use the exact same algorithm to show the same content from the same users. All it is doing is trying to surgically remove the ability of a foreign adversary country to obtain our data and be able to exercise control over the platform.”
The court seems unlikely to wait for Trump.
President-elect Donald J. Trump has asked the Supreme Court to issue an order delaying the law’s entry into force until after he takes office on January 20.
Mr Trump once shared the view that Chinese control of TikTok was an intolerable national security risk, but reversed course around the time he met with a billionaire Republican donor with a stake in its parent company.
If the court upholds the law, TikTok will be effectively banned in the United States on January 19, Mr. Francisco. He reiterated a request that the court temporarily stop the law from taking effect to delay that deadline, saying it would “just buy everybody some breathing room.” It could be a “different world” for TikTok after January 20, he added.
But the judges took little notice of the idea, suggesting they didn’t take it seriously. Mr. Trump’s brief asking that the court resolve the case after President Biden’s term ends so he can deal with it — signed by his pick to be the next attorney general, D. John Sauer — was long on rhetoric praising Mr. Trump, but short on substance.
