Lauren Feiner

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.

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.”

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.

“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.

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.

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.

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.”