The TikTok Ban Goes to the Supreme Court

0:04Today, the Supreme Court took up the TikTok ban. We will hear argument this morning in case 24656, TikTok versus Garland, and the consolidated case. The justices will determine whether or not the law banning TikTok in the U.S. will go ahead. It's slated to go into effect January 19th. Today was an exciting hearing at the Supreme Court. The courtroom was filled, but no, it was tense and it was interesting and it dealt with some very important issues. That's our colleague Jess Braven, who covers the Supreme Court. Big picture, what's at stake in this hearing? Well, what's at stake here is the future of TikTok, the viral social media app that 170 million Americans use each month.

0:53The government says that TikTok presents a national security threat to the United States if it remains in the control of China, a designated foreign adversary. But TikTok says no, those threats are overblown. And a group of American users of the app also challenged the law, saying that their free speech rights are infringed if the app they love is taken away. Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Friday, January 10th.

1:32Coming up on the show, will the Supreme Court uphold the TikTok ban?

1:52After Congress passed a law last year that threatened TikTok, people on the platform had big reactions. I've learned so much on TikTok. I have made so many friends on TikTok. I've made so many connections. for not taking this away from me. Influencers aren't out of touch for crying about the TikTok ban. You're out of touch for not realizing this is a real industry. We will be fine without TikTok, but I don't want to have to be. TikTok went to court to block the law. And that's how this case got to the Supreme Court today. First up was TikTok. The company's lawyer, Noel Francisco, laid out TikTok's arguments that the law was a violation of the First Amendment, of TikTok's freedom of speech.

2:41The act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a ban or a divestiture, one thing is clear. It's a burden on TikTok's speech. So the First Amendment applies. He argued that TikTok is a U.S. company, meaning the subsidiary of ByteDance that operates in the U.S. It's not directly run by the Chinese parent company and that it has First Amendment rights and that it should be able to use the algorithm that ByteDance has to promote this content throughout the U.S. And that it said the government didn't seriously explore less restrictive ways to achieve its national security ends.

3:24And he suggested that, say, having disclosure about risks of using the app would be one solution. How did the justices respond to the TikTok argument?

4:00ByteDance in Beijing. Yeah, he had a pretty tough row to hoe there. Here's Justice Samuel Alito in questioning, saying that because ByteDance isn't a U.S. company, the First Amendment doesn't apply. It's true. The court has never held that a foreign government has free speech rights. And if we were to hold that, I would think it would be because speech by a foreign government, particularly one with enormous resources, is not protected. Another question that the court really grappled with was whose speech and what is the speech that is at issue in this case? For example, there is not a restriction on what Americans are saying or can say on this platform.

4:46And what seems to be the speech is the confidential algorithm that ByteDance uses to serve up videos to TikTok users. And so what is that algorithm and how is its speech? And the analogy that the TikTok side gave was, well, try to think of it as like, you know, several floors in a magazine or newspaper offices where you have a collection of brilliant editors who are, you know, choosing the content that the publication will have that is just so unique and so well edited and selected that people will want to use it. And so that itself is a form of expression, a form of speech, and that is what is at issue here.

5:29And that if TikTok were severed from ByteDance, it could no longer use that confidential algorithm. And the nature of the app and the nature of what people can see will change. Justice Elena Kagan asked TikTok's lawyer outright if ByteDance's algorithm can be separated from the platform. And I guess my question is, how are those First Amendment rights really being implicated here? This statute says the foreign company has to divest. Whether or not that's feasible, however long it takes, TikTok still has the ability to use whatever algorithm it wants, doesn't it? No, Your Honor. ByteDance has control of the algorithm that serves TikTok users their videos.

6:17And the justices kept pressing TikTok's lawyer on whether the app could operate without that algorithm. Here's Justice Ketanji Brown-Jackson. I mean, if TikTok were to post-divestiture or whatever, pre-divestiture, come up with its own algorithm, right, then when the divestiture happened, it could still operate. It doesn't say TikTok, you can't speak. I think that's theoretically correct, Your Honor, but I think that also understores the content-based nature of the restriction. No, but the fact that that's true suggests that you're wrong about the statute being read as saying, TikTok, you have to go mute.

6:56Because TikTok can continue to operate on its own algorithm, on its own terms, as long as it's not associated with ByteDance. So isn't this really... After the justices were done grilling Francisco, Jeffrey Fisher, a lawyer representing creators on TikTok, stepped up. Fisher argued against the ban and called TikTok the most vibrant speech forum in the U.S. And the act, therefore, is inescapably subject to strict scrutiny because of the First Amendment implications. And the act fails that test and indeed any level of scrutiny under this court's case law because the act and the reasons behind it defy our history and tradition as well as precedent.

7:37American creators have long and always enjoyed the right to speak in conjunction with foreign speakers or work with foreign publishers. What did you make of the arguments from Jeffrey Fisher, the lawyer for the TikTok creators? Jeffrey Fisher had a somewhat easier way with the court because he was really representing people who are Americans. And there's no dispute that Americans have First Amendment rights and suppressing their ability to say things or hear things does run into constitutional problems. The question, though, was were his clients really the ones whose speech was being affected?

8:12And a number of justices said, well, you know, if this is ByteDance's speech through its algorithm, a foreign adversary doesn't have any First Amendment rights in the United States. The fact that there are some collateral consequences that some third parties, their interests are also harmed. Well, that's just kind of the way it goes. I mean, that happens with all kinds of legal decisions and divestitures and what have you when, you know, ownership changes. And so, you know, how much attention should the court have to pay to the impact on these third parties? After his opening statement, Fisher faced questions from justices, starting with Clarence Thomas.

8:51How exactly are the creator's speech being impeded? So two ways, Justice Thomas. First, I just point you to the text of the statute, which directly regulates text images, communicate real-time communications, videos. My clients, the creators, are the ones creating that speech and posting it to speak to other Americans. But it doesn't say anything about creators or people who use the site. It's only concerned about the ownership and the concerns that data will be manipulated or there will be other national security problems with someone who's not a citizen of this country or a company that's not here.

9:35TikTok's lawyer Francisco also suggested that if the court doesn't throw out the law, it should at least postpone it. President-elect Trump had asked the court to pause the TikTok shutdown until after he takes office. At the end of the hearing, Francisco had a final thought. What we're talking about is ideas. And my friends on the other side, when you cut through everything else, are ultimately worried that the ideas that appear on the TikTok platform could in the future somehow manipulate Americans, could somehow persuade them, could somehow get them to think something. that they ought not be thinking.

10:15Well, that whole notion is at war with the First Amendment. If the First Amendment means anything, it means that the government cannot restrict speech in order to protect us from speech. That's precisely what this law does from beginning to end.

10:35Overall, how convincing do you think the lawyers were for TikTok and the creators? The lawyers for TikTok and the creators, brought up significant First Amendment questions that really, I think, touched at this court's vigilant defense of free speech in most contexts and its great skepticism of government actions that appear to restrict speech. So those, I think, were effective, and the court would not be cavalier in its approach to resolving them. But they had a much, much harder time dealing with the data collection issue. Coming up, what the government argued and how the Supreme Court justices responded.

11:33The government's argument for upholding the law banning TikTok rests on national security. The Chinese government's control of TikTok poses a grave threat to national security. That's the U.S. Solicitor General, Elizabeth Prelogger. The Chinese government could weaponize TikTok at any time to harm the United States. TikTok collects unprecedented amounts of personal data. And as Justice Sotomayor noted, it's not just about the 170 million American users, but also about their non-user contacts who might not even be engaging with the platform. That data would be incredibly valuable to the PRC. PRC, or the People's Republic of China.

12:13National security leaders from agencies like the FBI, DOJ, and CIA have been concerned about the Chinese ownership of TikTok for years. They allege ByteDance could have access to user information on TikTok. TikTok says it protects U.S. user data. How did the justices respond to the government's case? The justices pushed very hard on the free speech question, and they raised a number of precedents and practices from the past which have seen the Supreme Court refuse to endorse restrictions on what Americans can say or listen to, even when they were connected to foreign adversary governments. Justice Neil Gorsuch pushed back on the idea that TikTok users didn't know the risks of using the app.

13:04Isn't that a pretty paternalistic point of view? I mean, don't we normally assume that the best remedy for problematic speech is counter speech? And TikTok says it could even live with a disclaimer on its website saying this can be covertly manipulated by China. In case anybody were left in doubt after today about that possibility. so you're saying that won't work because that won't work because it is such a generic generalized disclosure that it wouldn't put anyone reasonably on notice about when it's actually happening that's your best argument is that the average american won't be able to figure out that the cat feed feed he's getting on tiktok could be manipulated even though there's a disclosure saying it could be manipulated.

14:00But imagine if you walked into a store and it had a sign that said one of one million products in this store causes cancer. That is not going to put you on notice about what product is actually jeopardizing your health. And I think that's... So Solicitor General Elizabeth Prelogger had some trouble pushing that line of argument that this really was about ownership rather than content. But she was on stronger ground and got a much more receptive audience on the intelligence dossier angle. The idea that this app sitting on millions of cell phones was busily collecting information for Chinese intelligence that could be exploited in years or decades in the future, that is something that the justices seemed to believe was a very legitimate national security concern.

14:45And the question being, is this law sufficiently respectful of free speech rights to allow it to go into effect? Prelogger also emphasized that if ByteDance divests, TikTok could go on functioning. And she ended by focusing on the national security concerns about ByteDance. Finally, with respect to the question of whether ByteDance has taken action on the PRC's demands, there is evidence in the record that Congress consulted to demonstrate that outside of China, ByteDance has taken action to misappropriate data at the PRC's request. That included efforts to track dissidents in Hong Kong, protesters there, to track Uyghurs in China itself.

15:26We know that ByteDance has misappropriated U.S. data with respect to surveilling of U.S. journalists. And there was evidence in the record reinforcing the conclusion that ByteDance has been asked by the PRC to undertake efforts to censor content and manipulate the platform at the behest of the Chinese government.

15:46Jess expects the justices to rule on this case before January 19th. Right. So after listening to all of these arguments and the questioning and as a veteran Supreme Court reporter, how do you read the tea leaves for what's going to happen? It seems to me that the court does not want to second guess national security concerns that have such widespread support in Washington. The bill that President Biden signed was passed by large bipartisan majorities of Congress after the lawmakers got briefings from intelligence agencies. But I think the court is also very concerned about setting a precedent that would open the door to further speech restrictions in the United States.

16:35And I think that whatever the court does decide, whichever side it goes on, it will write its opinion in a way that is as narrow as possible to make it as limited as possible to this particular instance involving this app and this law without saying much more about future regulation of speech in the Internet era.

17:11That's all for today, Friday, January 10th. The Journal is a co-production of Spotify and The Wall Street Journal. The show is made by Catherine Brewer, Pia Godkari, Rachel Humphries, Ryan Knudsen, Matt Quang, Jessica Mendoza, Annie Minoff, Laura Morris, Enrique Perez de la Rosa, Sarah Platt, Alessandra Rizzo, Alan Rodriguez Espinosa, Heather Rogers, Pierce Singhi, Jivika Verma, Lisa Wang, Catherine Whalen, Tatiana Zemis, and me, Kate Leinbaugh, with help from Trina Menino. Our engineers are Griffin Tanner, Nathan Singapok, and Peter Leonard. Our theme music is by So Wiley. Additional music this week by Katherine Anderson, Peter Leonard, Bobby Lord, Emma Munger, Nathan Singapok, Griffin Tanner, So Wiley, and Blue Dot Sessions.

18:03Fact-checking by Mary Mathis. Thanks for listening. See you Monday.