More from TikTok’s last stand: Supreme Court weighs ban as deadline looms
Based on briefs filed with the court, Sotomayor says, TikTok seems to collect an unusually large amount of data. And even if users choose to share it, she says, it’s not about whether users think it’s okay to share; it’s whether the US sees it as a threat. Fisher says many of those assumptions don’t “bear out.”
“Congress is fine with the expression. They’re not fine with a foreign adversary ... gathering all this information,” he continues. Some members of Congress do, in fact, seem pretty concerned with the content — they’ve raised pro-Palestinian posts as an issue.
In an exchange with Justice Jackson, Fisher argues that speaking on TikTok can’t be compared to restrictions on Americans associating with dangerous groups like terrorist organizations. Unlike in cases around those restrictions, the government hasn’t singled out a clear and present danger when it comes to TikTok.
Jeffrey Fisher makes some extremely brief opening statements, then fields a question from Clarence Thomas on what speech is being infringed — the law is “only concerned about ownership,” says Thomas. “The American creators have the right to work with the publisher of their choice,” says Fisher. He raises the hypothetical of users being banned from posting on X, for instance.
Thomas responds that this theory could have prevented things like the breakup of AT&T — Fisher counters by saying that these platforms have “a particular perspective,” making it a unique speech question.
Liberal Justice Ketanji Brown Jackson says that the law in question “doesn’t say, ‘TikTok, you can’t speak.’” What TikTok seems to want, she suggests, is access to ByteDance’s algorithm — but if TikTok came up with its own algorithm after divestiture, it could still operate.
In an exchange with Justice Barrett, Noel Francisco explains the two reasons why it’s not possible to disentangle from ByteDance: first, that it would take years to reconstruct a team that could maintain the source code, and second, that it would need to get users around the world to sign up for an essentially new platform to share content.
On Bluesky (requires login), Colorado Law professor Blake Reid points out how the court’s arguments could apply to US platforms:
The message from this argument is that you can maybe avoid even implicating speech interests if you go after editorial choices by way of structurally severing corporate ties with downstream intermediaries.
A prime example of how this could be abused: making the owners of social networks divest them to pressure them into changing how they moderate.
Justice Barrett doesn’t seem to be buying that the law is a straightforward ban on TikTok. “You keep saying shut down,” she says to TikTok’s attorney about what would happen after January 19th. “The law doesn’t say that TikTok has to shut down.”
TikTok attorney Francisco lays out what happens if the law goes into effect on January 19th. Justice Brett Kavanaugh asks what shutting down means. “One, the app is not available in the app stores,” but also, service providers will say “we’re not going to be providing the services necessary to have you see” anything from the platform, says Francisco. (TikTok has an incentive to paint the most dramatic picture possible, even if a sale is possible, of course.)
Liberal justice Sonia Sotomayor says that if the court believes only intermediate First Amendment scrutiny applies to the data protection concerns, then the government is only required to use “reasonable means” to address their interests.
UChicago Law professor Genevieve Lakier notes just how much time is being spent on whether this is a case about speech at all. That may not bode well for TikTok.
Justice Elena Kagan suggests ByteDance could find alternatives to its current ownership structure of TikTok — questioning whether banning a particular corporate structure is fundamentally a regulation of TikTok’s speech. Justice Roberts follows up on the corporate structure question. “I’m not sure there’s another case” where the court has considered something a direct speech restriction “when it’s based on derivative regulation of corporate structure of somebody else.”
“Am I right that the algorithm is the speech here?” conservative Justice Amy Coney Barrett asks. She says that Congress’ concern is “the covert content manipulation piece of the algorithm” and suggests that stems from China-based ByteDance’s speech. Barrett wrote in the court’s NetChoice case that foreign corporations don’t have First Amendment rights.
Several justices have raised questions about how many degrees of separation lie between TikTok (a US company) and the Chinese Communist party, and Justice Neil Gorsuch asks whether China would let ByteDance sell TikTok. “It would be exceedingly difficult under any timeframe” to sell, says Francisco — not because China controls it, but for logistical reasons like carving out US videos from TikTok’s global platform.
In a hypothetical, conservative Justice Samuel Alito says the court has never held that foreign governments have free speech rights in the US, and asks, “why would it all change if it were simply hidden under some sort of contrived corporate structure?” TikTok’s attorney says it’s because TikTok is a bona fide US company.
We’re getting a question about past cases involving limits on foreign media ownership — Francisco says these involved media like radio, where the government had greater discretion because of basic spectrum scarcity, so they aren’t good points of comparison. Broadcast regulations are a big deal recently.
Goodwin says she gets 98 percent of her business for her greeting card and gifts company through TikTok and couldn’t sustain it without the app. “Pivoting is not really an option at this point,” she says. After building a company and community on TikTok, “it’s gonna be a heck of a lot lonelier” if it’s banned.
The prime metaphor in the case so far, raised by TikTok’s attorney, is an analogy about whether the government could ban The Washington Post from operating if the Chinese government kidnapped Jeff Bezos’ children and forced him to print propaganda. (He’s against it.) Regardless of the questions over speech and TikTok, Justice Sonia Sotomayor seems pretty skeptical of his claim that the government couldn’t meaningfully step in.
Roberts raises the national security concerns of ByteDance working from China. “Do you dispute that ByteDance has ultimate control” of TikTok? Francisco does dispute it, but he says, “I don’t think it would change the analysis.”
TikTok attorney Noel Francisco is making opening arguments on the livestream — stressing the First Amendment’s role in the case and the potential speech burdens for TikTok and its users. He’s arguing that TikTok’s speech is, in particular, its recommendation algorithm, which is the least likely piece to be approved for a sale by the Chinese government.
“If you want people to care, you’ve got to show that you care,” says South Carolina-based Baus. “It’s all about making noise.” Baus has been updating her nearly 800,000 TikTok followers along the way. “This isn’t just something small. This isn’t just something I’m brushing to the side. I’m fighting for them as well.”
The Supreme Court will hear oral arguments from TikTok, a group of TikTok users, and the US government before deciding whether to block a law that will otherwise take effect on January 19th. You can listen on C-Span or the Supreme Court’s site, starting at 10AM ET.
“While we do not have specific on when the court will make its ruling, you can be assured that we will be transparent on the next steps as soon as we have a decision,” writes TikTok’s Kim Farrell, according to a screenshot of a message shared by Andru Edwards.
The Supreme Court will hear oral arguments in the case against the TikTok divest-or-ban bill on Friday, which will determine the future of the app in the US.