TikTok Supreme Court Clash Pits Free Speech Against US Security

The future of the wildly popular social media platform TikTok rides on a US Supreme Court clash that pits national security against free speech – and one president against another.

The justices will hear arguments Friday, only nine days before a federal law is set to ban TikTok in the US if it isn’t sold by its Chinese parent company.

The hastily scheduled session that starts at 10 a.m. will determine whether companies that host and distribute TikTok can continue to do so legally in the US, where the platform has 170 million users. Although TikTok creators are busily developing workarounds, the app over time is likely to lose much of its functionality if the ban takes effect.

The US Supreme Court.

Photographer: Al Drago/Bloomberg

The case will bring unusual atmospherics to the court, testing a law set to take effect the day before Donald Trump begins his second term as president. Once a supporter of a TikTok ban, Trump is now a critic, putting him at odds with outgoing President Joe Biden, whose administration is defending the measure. Trump, who appointed three of the current nine justices during his first term, asked the court last month to take the unorthodox step of blocking the law so he can broker a settlement.

The central legal issue is more conventional, testing the reach of the speech protections in the Constitution’s First Amendment.

The core question is “who gets to decide when there are legitimate national security concerns that might displace First Amendment rights,” said Gus Hurwitz, academic director of the Center for Technology, Innovation and Competition at the University of Pennsylvania’s Carey Law School.

Biden signed the measure into law in April after it won approval from a bipartisan majority in Congress. His administration told the Supreme Court that Chinese control of TikTok poses a grave security threat, letting a foreign adversary collect data on Americans and spread propaganda.

“TikTok’s role as a key channel of communication makes it a potent weapon for covert influence operations,” US Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, argued in legal papers.

TikTok Inc. and its Chinese parent, ByteDance Ltd., say lawmakers gave short shrift to free speech rights. The companies contend that foreign influence concerns are unfounded, arguing in court papers that TikTok Inc. is an “American company incorporated and headquartered in California.”

Congress can’t protect national security by “suppressing the speech of Americans because other Americans may be persuaded,” the companies argued.

A group of content creators is also urging the court to strike down the law, saying their First Amendment rights are being infringed as well. The law “restricts the rights of Americans to speak, collaborate with the editor and publisher of their choice, and hear ideas of others,” the group argued.

Donald Trump

Photographer: Allison Robbert/AFP/Bloomberg

Trump’s filing was full of praise for his own negotiating prowess but didn’t take a position on the law’s constitutionality, as parties normally do when seeking to put a measure on hold. The brief was filed by John Sauer, whom Trump has tapped to become the next solicitor general.

The law cleared a key test in December when an ideologically diverse federal appeals court panel in Washington ruled 3-0 that the ban is a legitimate means of protecting national security.

“For them to conclude unanimously the same thing suggests that it’s more clear-cut than I think most people had thought a few months ago,” said Sarah Kreps, a government and law professor and director of the Tech Policy Institute at Cornell University.

The Supreme Court put the case on a fast track after TikTok and the content creators asked for the ban to be put on hold temporarily. The justices instead scheduled a special session that gives them time to issue a definitive ruling on the law’s constitutionality before Jan. 19.

The court could also issue an interim order — saying whether the law can take effect on Jan. 19 — while giving itself more time to rule on the merits of the case with a full opinion.

The cases are TikTok v. Garland, 24-656, and Firebaugh v. Garland, 24-657.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Peter Jeffrey

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