TikTok Tries to Head Off Divestment Law at the Supreme Court

TikTok and a coterie of its users came before the Supreme Court on Friday to mount their last-resort First-Amendment challenge to the law that will force ByteDance, TikTok’s Chinese parent company, to sell the platform or cease its U.S. operations in less than two weeks on Jan. 19.

For 2 1/2 hours, lawyers led the court in circles around the two core points of contention: first, whether the divestiture law impermissibly burdened protected speech; and second, whether Congress’s concerns over data harvesting by the Chinese Communist Party presented an independent and constitutionally sufficient basis for upholding the law. 

The argument featured one current and one former U.S. solicitor general, one Silicon Valley law partner play acting a civil libertarian, and nine justices most of whom sounded unsure of how best to approach the problem before them. 

Congress billed the law at issue as a national security measure. With support from President Donald Trump in his first term, President Joe Biden, and a bi-partisan majority of Congress, the political branches concurred that the CCP’s control of TikTok through ByteDance (an entity with an internal CCP committee) presented national security risks. Those were the CCP’s ability to manipulate what Americans saw on TikTok and to access and collect the sensitive data of American users.

But the litigation playbook for all social media platforms foreign and domestic is to convert every attempt at regulation into a First Amendment issue. The law, said TikTok and its users, impermissibly targeted their speech because of its content.

That ensured a courtroom showdown between two of the more absolute maxims of modern government: that the federal government cannot restrict speech or expression and that it must protect its citizens from foreign adversaries. The latter won out below, when the Court of Appeals for the D.C. Circuit unanimously upheld the law, reasoning that Congress’s national security concerns were so weighty that they would have satisfied even strict scrutiny, a standard that requires a law to be narrowly tailored to achieve a compelling government interest.

Noel Francisco, Trump’s former solicitor general, was the man charged with reversing TikTok’s loss in the lower court. Francisco contended that TikTok’s algorithm, created and owned in part by ByteDance, functioned just like newspaper editors selecting pieces for publication. That algorithm, he explained, supposedly reflects TikTok’s preferred mix of content. Thus, by interfering with TikTok’s ability to use that algorithm, the law necessarily suppressed the platform’s speech. Francisco argued further that the law could not satisfy any standard of scrutiny because, in his view, the government has no interest in preventing its citizens from encountering foreign propaganda. 

The justices, however, expressed some doubts about whether the law implicated the First Amendment. Justice Elena Kagan observed that ByteDance, not TikTok, is the entity directly affected by the law, and she expressed doubts that a foreign entity operating abroad had First Amendment rights. She returned to that theme when she asked Jeffrey Fisher, representing the “content creators,” whether a foreign media platform would, in effect, acquire the same First Amendment rights as U.S. users whenever a U.S. user asserts an interest in publishing or interacting with that platform.

Several justices questioned Francisco and Fisher on whether the law was, in fact, a content-based speech restriction. Chief Justice John Roberts insisted that China did not care what people are saying on TikTok but cared immensely about “regulating a particular channel of communication.” Similarly, Justice Clarence Thomas stated that the law does not address the TikTokers or their speech but is concerned only with ownership of the platform.

Justice Amy Coney Barrett noted that TikTok’s impending shutdown, which petitioners called a speech infringement, might be better characterized as the consequence of ByteDance’s refusal to divest. Meanwhile, Justice Ketanji Brown Jackson believed the case had more to do with associational rights than speech rights and suggested that the law passed muster even under strict scrutiny.

Francisco had a rough outing. His colloquies with Justice Samuel Alito became particularly contentious as the two spoke over one another until Alito complained that the former solicitor general was avoiding his hypotheticals. Fisher faced less aggressive questioning, but despite his insistence that a law regulating ideas was an unconstitutional “poison pill,” the court appeared prepared to affirm the D.C. Circuit and uphold the law after two rounds of argument.

That picture grew murkier when the justices probed the government. Solicitor General Elizabeth Prelogar contended that the law counteracted a specific threat from a foreign adversary and was “not a direct regulation of protected speech” under the First Amendment. But she received sustained pushback from the bench especially on the question of the CCP’s “covert content manipulation.” Kagan was skeptical that there was substance to that justification. Chinese intrigues, she mused, could only be so covert if the public already knew that China interferes with TikTok’s content. She also noted that the relative opacity of an algorithm’s workings to users was not a unique concern because that was true of every search engine. Kagan seemed to conclude that the law was at least in part a content-based restriction and thus subject to strict scrutiny.  It was unclear whether that affected her view of ByteDance’s speech rights. 

Most critical of all was Justice Neil Gorsuch, who called the government’s desire to shield Americans from foreign propaganda “a pretty paternalistic point of view.” He asked why the proper remedy to bad speech was not just more speech and discernment by TikTok’s users? Prelogar said that it was not clear to users which content had been manipulated. When asked why the law was not akin to an unlawful regulation of traditional publishers, she responded that newspapers were not likely to be collecting sensitive information from millions of users.

Despite the marathon length of the argument, certain themes garnered little attention. For instance, to what extent does it make sense to consider less dramatic restrictions on ByteDance and TikTok if those require an assumption of cooperation and good faith by the Chinese parties? The D.C. Circuit placed considerable weight on the government’s judgment that ByteDance and its U.S. subsidiaries would not “comply in good faith with the [National Security Administration]” if left in their current state of ownership. That was little discussed today. Completely unaddressed was the question of why TikTok believes that the ByteDance algorithm creates an ideal and irreplicable content mixture. Francisco recurred to this line repeatedly, but he was never challenged on what the defining features of this mixture were.  While that is not an inherently legal question, any sensible observer would be curious about what TikTok thinks is ideal and why.

Forecasting outcomes from oral arguments is always a doubtful enterprise. Gorsuch is the only justice whose questions were consistently favorable to TikTok and skeptical of the government. The remaining votes are harder to forecast. Among the other eight justices, the debate may turn on whether foreigners abroad like ByteDance have speech rights, but more likely it will center on whether the government’s data-privacy rationale is compelling and can be severed if the court finds from the government’s fears over content manipulation constitutionally suspect. Out of deference to Congress, the court often strains to sever any unconstitutional provisions and thus uphold the remainder of the law. Perhaps the same will be true here.

A decision is expected by June, but given the law’s impending Jan. 19 deadline, there is a possibility that court may issue a temporary administrative stay of the law. Justice Alito raised this possibility and both sides seemed to agree would be permissible, at least if it was “necessary to assist in the Court’s own consideration of the case.”

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