The clock is winding down on TikTok’s future in the United States, as the popular video-sharing website’s China-based owner, ByteDance, has until this Sunday, Jan. 19, to sell TikTok to a non-Chinese owner or shut it down in the U.S—the day before President-Elect Donald Trump takes office. That’s because Congress recently passed a bipartisan law, called the Protecting Americans from Foreign Adversary Controlled Applications Act (or PAFACA), banning internet service providers and firms from hosting or offering apps controlled by foreign governments hostile to the U.S. The proponents of the Act believe the website gathers user data and that China could manipulate personalized video feeds to influence U.S. public opinion. TikTok is reportedly used by more than 170 million Americans.
At the end of last week, the Justices heard oral argument for more than two hours in the coordinated cases, TikTok v. Garland and Firebaugh v. Garland, centering on ByteDance’s claim that the Act infringes on its and TikTok users’ First Amendment rights. On behalf of the government, Solicitor General Elizabeth Prelogar argued that the Act is an ownership restriction, not a ban on speech or activity, and emphasized that all of the same speech could continue as is on the platform after ByteDance’s divestiture. She also referenced precedent for restrictions or limits on foreign ownership of media platforms, including television and radio stations. ByteDance distinguished those cases as concerning a different era in media when the government had to choose which companies get broadcast licenses, which were inherently limited because of spectrum scarcity. According to ByteDance, the internet is an entirely different medium of communication, where there is no limit on how many websites or platforms can exist, making it more akin to magazines and books, which carry a more protective standard.
ByteDance may be able to distinguish those broadcast-era cases, but the fact remains that precedent is still there. If a majority of the Justices see the law as an ownership restriction founded on national security concerns rather than a speech ban, there’s enough history of ownership regulations being upheld by the Supreme Court, that the government may prevail in the cases. The government did argue that it has a strong national security interest over the risks of U.S. user data being obtained by Chinese intelligence and the Chinese government’s pressuring the platform to change its algorithm to serve Chinese government propaganda. Based on the questions the Justices asked, however, it is unclear if they will defer to the executive and the legislative branches on whether those risks are real. The Justices’ questions were aimed to probe the weaknesses in each side’s position. The Justices didn’t seem as receptive to ByteDance’s arguments, but it is always challenging to listen to oral argument and make assumptions on how a case will turn out. Chief Justice Roberts made the declarative statement that Congress “doesn’t care what’s on TikTok” but that Congress isn’t okay with a “foreign adversary” gathering information from the millions of Americans using the app. Likewise, Justice Thomas asked ByteDance’s attorney how a restriction on its ownership of TikTok created any limitations on TikTok’s speech. Justice Kagan echoed that skepticism, reasoning that “if the law only targets ByteDance, which does not have any First Amendment rights because it is a foreign corporation,” she asked ByteDance’s attorney, “how does that implicate TikTok’s First Amendment rights?”
An interesting feature of these cases is that President Trump, who wanted to ban TikTok during his first administration, filed an amicus brief asking the Justices to pause the Act’s Jan. 19 deadline so that he can re-enter office and negotiate a deal with the appropriate stakeholders. ByteDance’s attorney, Noel Francisco, served as the Solicitor General in President Trump’s first administration, and he asked the Justices to issue a preliminary injunction to “buy everybody a little breathing space,” noting that “we might be in a different world again” after President Trump re-takes office. But the Justices spent little time talking about his request.
A decision is expected this week, given the Act’s approaching Jan. 19 deadline. That’s a rare pace, as the Court usually takes months to issue decisions. Stay tuned for Dykema’s decision alert once the Court issues its decision.
For more information, please contact James Azadian or Chantel Febus.