Supreme Court Considers TikTok Ban as January 19 Deadline Approaches

The U.S. Supreme Court recently deliberated on a law that could force TikTok to either sell or be banned, primarily due to concerns over its ties to China. During the hearing, several justices expressed doubts about whether the law infringes on the First Amendment.

Here are the key points from the arguments:

• Chief Justice John Roberts appeared skeptical that the law implicates the First Amendment, suggesting that Congress was primarily concerned with national security, not free speech. He emphasized that Congress was “fine with the expression” but not with a “foreign adversary” gathering data on millions of Americans, including those who use TikTok. He also noted that the law was aimed at regulating a company’s corporate structure, not its speech.

• Justice Elena Kagan raised similar concerns, indicating that the law targets a foreign-owned corporation, which does not have First Amendment rights. She also referenced past historical concerns about foreign influence in the U.S., including Soviet propaganda during the Cold War, questioning whether Congress would have been right to force the Communist Party in the U.S. to sever ties with the Soviet Union.

• Justice Brett Kavanaugh, typically a swing vote, focused on national security risks, noting the Chinese government’s potential use of TikTok to amass detailed profiles on Americans, including teenagers and young adults. He expressed concerns about China using this data for espionage or blackmail, particularly with regard to individuals who may one day work in sensitive government roles.

• Justice Neil Gorsuch, who seemed more concerned about the potential overreach of the ban, questioned whether it was appropriate to regulate speech in this manner. He argued that, traditionally, the remedy for problematic speech is counter-speech, not outright bans. He wondered if the government could apply the same logic to shutting down a foreign-owned newspaper, drawing attention to the broader implications for free speech.

• Solicitor General Elizabeth Prelogar argued on behalf of the Biden administration, stressing that TikTok’s massive data set could provide China with powerful tools for espionage, recruitment, and harassment. She pointed out that Congress and the president were acting in the interest of national security, particularly regarding Chinese access to Americans' personal data.

• Justice Sonia Sotomayor raised a cautionary note about potential non-enforcement of the law, referencing former President Trump’s involvement in seeking a delay. She warned that assurances from the incoming president not to enforce the law would not change the fact that ignoring the law could lead to violations. This underscored the legal risk TikTok faces even amid political uncertainty.

The law mandates that TikTok must either divest from its Chinese parent company or face a ban starting January 19. TikTok’s legal team has warned that the app could be removed from app stores, though existing users could still have access, albeit with potential security issues due to a lack of updates.

If the Court upholds the law, TikTok’s future remains uncertain, especially with Trump’s potential involvement in pushing for a delay or negotiation.