The lawyer for TikTok and its Chinese parent company ByteDance offered a warning during Supreme Court arguments on a law that would force the sale of the short-video app or ban it in the United States: If Congress has could do this to TikTok, he could attack other companies.
The law, which was the subject of arguments before the nine justices on Friday, sets a Jan. 19 deadline for ByteDance to sell the popular social media platform, or face a ban on national security grounds. The companies have called for, at the very least, a delay in implementing the law, which they say violates the First Amendment to the United States Constitution protecting free speech from government restrictions.
Noel Francisco, representing TikTok and ByteDance, argued that the Supreme Court’s approval of this law could allow laws to be passed targeting other companies on similar grounds.
“AMC theaters were owned by a Chinese company. Under this theory, Congress could order AMC theaters to censor all the movies Congress doesn’t like or promote all the movies Congress wants,” Mr. Francisco said to the judges.
The justices indicated through their questions during oral arguments that they were inclined to uphold the law, although some expressed serious concerns about its implications for the First Amendment.
TikTok is a platform used by around 170 million people in the United States, or roughly half of the country’s population. Congress passed the measure last year with overwhelming bipartisan support, with lawmakers citing the risk that the Chinese government would exploit TikTok to spy on Americans and conduct covert influence operations.
Jeffrey Fisher, the lawyer representing TikTok content creators who also challenged the law, noted during oral arguments before the Supreme Court that Congress, with this measure, was focusing on TikTok and not on large Chinese retailers in line, including Temu.
“Would a Congress (genuinely) concerned about these dramatic risks leave aside an e-commerce site like Temu, which is used by 70 million Americans? Mr. Fisher asked. “It’s very curious why you wouldn’t you’re only interested in TikTok and not other companies whose data of tens of millions of people has been captured, you know, in the process of using these websites and which are just as, if not more, available for Chinese control.
Democratic President Joe Biden signed the law and his administration is defending it in this case. The divestment deadline is set for one day before Republican Donald Trump, who opposes the ban, takes office as Mr. Biden’s successor.
FOREIGN OPPONENTS
Attorney General Elizabeth Prelogar, who defended the law on behalf of the Biden administration, said it was critical that it take effect on Jan. 19 as scheduled in order to force ByteDance to take divestment steps.
“Foreign adversaries do not voluntarily relinquish their control over this channel of mass communications in the United States,” Ms. Prelogar said.
“When the time comes for action and these restrictions take effect, I think it will fundamentally change the landscape in terms of what ByteDance is willing to consider. “Congress expected what the company would need to move forward with the divestiture process,” Mr. Prelogar said.
If the ban takes effect on January 19, Apple and Google (Alphabet) will no longer be able to offer TikTok for download to new users, but existing users will still be able to access the application. The US government and TikTok agree that the app would degrade and ultimately become unusable in due course because the companies would not be able to offer support services.
The Supreme Court also debated whether the possibility of TikTok being used by China for covert influence campaigns or propaganda purposes justified its ban.
“Look, everyone manipulates content,” Francisco told the court. “There are a lot of people who think that CNN, Fox News, the Wall Street Journal, the New York Times are manipulating their content. This is fundamental protected speech.
On December 27, Mr. Trump asked the Court to suspend the January 19 deadline to give his new administration “the opportunity to pursue a political solution to the issues raised in this case.”
Under the law, the President of the United States has the authority to extend the January 19 deadline by 90 days, but under circumstances that do not appear to apply to the current situation, in which ByteDance has made no apparent effort to sell TikTok’s U.S. assets. The law requires the president to certify that significant progress has been made toward a sale, with binding legal agreements.
Regardless, Mr. Trump will not become president until after the deadline, although Mr. Francisco said “the world could be different” once Mr. Trump returns to the White House.
Justice Brett Kavanaugh asked Mr. Prelogar if the president could “say we are not going to enforce this law.”
“I think as a general rule, of course, the president has discretion in enforcing the law,” Mr. Prelogar responded.
“Again, that’s one of the reasons why I think it makes a lot of sense to issue a preliminary injunction here and give everyone some breathing room,” Mr. Francisco said .
