The United States Supreme Court will hold a debate on the TikTok case on Friday (January 10th), where there will be a clash between freedom of speech and national security, and the outcome will determine the fate of TikTok.
This case is one of the most important in the era of social media. TikTok is a popular digital platform used by approximately half of Americans to access entertainment and information.
TikTok stated that the Supreme Court either needs to abolish the law aimed at forcing TikTok’s Chinese parent company to sell the social media website or postpone the law’s effective date; otherwise, the company plans to shut down its social media site in the United States on January 19th.
Before the deadline, judges also received a request from President-elect Donald Trump, hoping the court would delay the ruling on the case to allow his new government time to reach a “political solution”. It is not clear whether the court will consider Trump’s opinion, as this unconventional attempt could influence the case’s decision.
TikTok, its parent company ByteDance in China, as well as content creators and users, all argue that the law is a serious violation of the constitutionally protected freedom of speech.
Lawyers for users and content creators wrote, “The court rarely faces such a substantial freedom of speech case affecting the interests of so many. Content creators are anxiously awaiting the ruling while seeking new platforms.”
This case is another example of the Supreme Court making a decision on a form of media. While judges often intervene in substantive issues involving speech restrictions and make rulings, they admit they are not familiar with this type of media and lack expertise in this area.
The Biden administration defends a law signed by President Joe Biden in April, which received broad bipartisan support in Congress. The Biden administration believes that “No one seriously questions (China) controlling TikTok through ByteDance poses a serious threat to U.S. national security.”
Officials stated that the Chinese authorities can force ByteDance to disclose information about TikTok’s American supporters, or use the platform to disseminate or suppress information.
TikTok informed the judges that the U.S. government “admits there is no evidence that China (Chinese Communist Party) has attempted to do so.” TikTok believes that if these concerns are about future risks, they should not be sustained.
In December last year, a three-judge panel (two appointed by Republicans and one by Democrats) unanimously supported the law and rejected TikTok’s First Amendment freedom of speech claims.
Time is running out, with the Supreme Court debate scheduled just 9 days before the law takes effect and 10 days before the new government takes office.
Trump’s lawyers urged the court to temporarily halt the TikTok ban’s implementation but not make a final ruling.
D. John Sauer, Chief Counsel for the Trump administration, wrote in a legal brief submitted to the court, “Only President Trump alone possesses extraordinary negotiation skills, voter mandate, and political will to negotiate and reach a solution, saving the platform while addressing the national security issues raised by the government. President Trump himself also recognizes these issues.”
Sauer wrote that Trump has not taken a position on the basic facts of the case.
Trump’s campaign team used TikTok to connect with young voters, especially male voters. In December, Trump met with TikTok CEO Shou Zi Chew at Mar-a-Lago in Palm Beach, Florida. He has 14.7 million followers on TikTok.
Judges have allocated two hours for the debate, but it could likely exceed this time frame.
Three experienced Supreme Court lawyers will present arguments. Elizabeth Prelogar, the Chief Prosecutor, will present the Biden administration’s defense of the law, Noel Francisco, the former Chief Legal Officer of the Trump administration, will represent TikTok and ByteDance. Stanford Law Professor Jeffrey Fisher will represent content creators and users in the 50th debate in the Supreme Court.
If the law takes effect, the Justice Department under Trump would be responsible for enforcement. Lawyers for TikTok and ByteDance believe the new administration may seek to mitigate the law’s most severe consequences.
However, they also stated that even a one-month shutdown would lead to a decrease of about one-third of TikTok’s daily active users in the U.S. and significant revenue loss.
The Supreme Court must decide to what extent to scrutinize the law when weighing this case. If the strictest scrutiny is applied, the law almost always fails, but two appeals court judges supported the law, stating it is a rare exception that can withstand strict scrutiny.
TikTok, the app’s users, and many supporters urge the court to scrutinize the law rigorously to abolish it.
The Democratic government and some of its supporters cite restrictions on foreign ownership of broadcast stations and other economic sectors to justify resisting Chinese influence in the TikTok ban.
A ruling is expected in the coming days.