There may not be even a single vote to strike down the law requiring the Chinese company ByteDance to either divest from TikTok or cease operating in the U.S.
The Supreme Court has been hearing arguments this morning on whether to uphold the federal law requiring the Chinese company ByteDance to either divest from TikTok or cease operating the platform in the United States. Based on how the arguments went, there may not be even a single vote to strike down the law or even pause it until Donald Trump can be sworn in.
The likeliest basis for the Court to rule is the concern that TikTok is gathering information on Americans, and that this is being done by a foreign entity linked to a hostile foreign government. Oddly, it took nearly 40 minutes into the argument for that issue to come up, but the justices piled on Noel Francisco, the former solicitor general, arguing for TikTok, and Jeffrey Fisher, arguing on behalf of TikTok users, on the data collection issue. Justice Samuel Alito pinned down Francisco on two points: that his argument for TikTok’s First Amendment rights wouldn’t stand up if TikTok was directly controlled by the Chinese government, and that he wouldn’t have an argument about discrimination against TikTok’s speech if Congress had premised its law only on data security concerns. Justice Brett Kavanaugh asked Francisco whether it is really an unrealistic concern to think that if you collect information on people in their teens or twenties, that this information might be used against them later in life when they work for the government. (This, from a man who was almost kept off the Court based on allegations from his high school years.) As Kavanaugh said of the data collection issue, “That seems like a huge concern for the future of the country.”
Francisco and Fisher complained that Congress had singled out TikTok and analogized this to banning prostitution but only in bookstores, but Kavanaugh observed that the government doesn’t need to take on every threat at once; Justice Sonia Sotomayor went into not only the vast scale of TikTok’s audience and the details of its invasive data collection (e.g., collecting people’s contact lists and tracking their keystrokes); and Alito observed that the Court typically doesn’t get into what motivates Congress in passing laws. Justice Ketanji Brown Jackson argued that the case is really about freedom to associate with a foreign government, and that prior precedents had upheld restrictions on such associations. Chief Justice Roberts noted that Congress doesn’t actually care what gets said on TikTok, it just cares about the Chinese gathering information, and that can be fixed by having someone else run the place.
That does present practical problems, according to Francisco and Fisher: TikTok says it will have to shut down and can’t re-create its algorithm to be run separately. Justice Amy Coney Barrett noted that, if ByteDance would just divest, “we wouldn’t be here.” There was little sympathy from the bench on that point, or on Francisco openly begging to put the issue off until after January 19 so that it could be handed off from Joe Biden to Donald Trump.
By contrast, the Court was much less comfortable with the government’s arguments about the danger of “covert manipulation” of news and information by China through TikTok, a real and fair concern but one that could set a more troubling precedent — especially if the Court writes an opinion in haste. That’s why I expect that the Court, in trying to resolve this case in the next nine days, may want to find the narrowest possible grounds — which is the ways in which TikTok spies on Americans for China, a concern very unlike the issues that arise with newspapers or cable channels owned by foreigners or foreign states.