In the Supreme Court’s argument, the justices posed a key question: Can Congress ban a speech platform to stop the Chinese government from manipulating it?
from Emily Baker-WhiteForbes Staff
WChicken Congress passed the law that required TikTok’s parent company, ByteDance, to sell it or see it banned in the U.S., he was motivated in part by fears that the Chinese government could use TikTok to distort American discourse, pitting people against each other. the other and eroding confidence in the democratic systems that define American politics.
On Friday, at the oral argument that will determine TikTok’s fate, Chief Justice John Roberts joked to underline that risk: “Did I understand you to say, a few minutes ago, that one problem is that ByteDance could be, through TikTok, trying? to get Americans to argue with each other?” He then answered his own question, prompting laughter from the crowd: “If they do, I’d say they’re winning!”
Foreign governments, including that of China, have been influencing operations to try to disrupt and propagandize American citizens and have used social media platforms to do so. (The U.S. government has run similar campaigns abroad.) But the TikTok law is the first attempt by the U.S. Congress to directly regulate a social media platform in order to limit these influence operations. This raises a key First Amendment question: Can the US government, in trying to stop other governments from manipulating speech, manipulate speech itself by forcing the shutdown of a massively popular platform?
The whole idea of the US government fighting the manipulation of foreign speech is “at war with the First Amendment,” argued Noel Francisco, counsel for ByteDance, on Friday. But the D.C. Circuit Court of Appeals disagreed with that argument last month, in a controversial ruling that sometimes said restrictions on Americans’ speech are necessary to ensure a healthy ecosystem of free speech. “[T]The government acted only to protect” Americans’ First Amendment freedoms, the D.C. circuit held — even as it upheld a law that could have shut down a massive speech platform.
Today, a handful of tech companies have tremendous power over the information Americans consume. In the NetChoice cases last term, the Supreme Court ruled that US tech giants have a First Amendment right to curate that content — to promote certain messages over other messages — at will. But foreign tech giants don’t have that right, and in passing the TikTok law, Congress said that at least when those foreign companies are controlled by foreign adversaries, the same editorial control that protects speech when it’s made by an American company is a national security. danger when done by a Chinese (or Russian or Iranian).
This tension leaves social media users with little transparency about why they see the messages they do and which governments may have pressured them to promote or discount certain narratives. Just this week, Meta announced sweeping changes to its content policies in an effort to curry favor with the incoming Trump administration. But because Meta is a local firm acting on its own accord, it was simply exercising its right to free speech. (In a previous life I held content policy positions at Facebook and Spotify.)
The TikTok bill isn’t an outright ban: it gives ByteDance the choice to sell TikTok instead of seeing it banned. But ByteDance has, at least so far, insisted it won’t sell TikTok; instead, it will exit the US market altogether.
Judge Amy Coney Barrett pushed this point during arguments, noting that TikTok will only be banned if ByteDance chooses a ban instead of a sale. But in practice, ByteDance may not have much of a choice because the Chinese government has said it is not allowed to sell TikTok, and the Chinese government’s disregard could jeopardize both ByteDance’s business and the personal safety of its employees.
Solicitor General Elizabeth Prelogar compared the case to a game of chicken between the Chinese and US governments and urged them not to let the US turn a blind eye. It is clear that ByteDance does not want to sell TikTok and will not do so unless it has no other option. Prelogar asked the justices to allow the law to take effect on January 19, causing a temporary shutdown of TikTok in the US. There would be “nothing permanent or irrevocable” about such a ban, she said – it could be lifted once an investment is made. is complete and could provide a “shock” to ByteDance that would make it seriously consider the possibility of a sale.
If the law goes into effect, TikTok will likely not only disappear from app stores, but also stop working in the United States. That’s because the law would require all US companies that help keep TikTok online, from the cloud companies that host TikTok’s data to content distribution networks and their providers, to stop doing so.
There are three ways judges could stop the law from taking effect on January 19. They could rule on TikTok and find the law unconstitutional, or they could issue one of two kinds of stances, temporarily halting the law from taking effect while they ponder its fate. To grant the first type of stay, called a temporary restraining order, the court would have to find that ByteDance and TikTok are likely to ultimately win their case. But the second type of stance, the administrative stance, would not require the court to take a stance on the merits. Instead, it would only reflect the court’s decision that they need more time to consider the case.
The court is widely expected to rule on the case extremely quickly, ahead of the January 19 deadline. If it complies with the law, TikTok will at least temporarily go offline — though President Trump may try to bring it back by issuing a one-time, three-month extension to give the company time to negotiate a sale.
However, if the law is implemented, a three-month extension likely won’t make a significant difference to TikTok’s future. If the judges do not invalidate the law, ByteDance will have to sell TikTok, or the platform will disappear in the United States.
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