TikTok ban update: SCOTUS likely to uphold TikTok ban unless Chinese-owned ByteDance divests

WASHINGTON -- A majority of justices on the Supreme Court appear inclined to uphold a federal law that would ban the video-sharing app TikTok in the U.S. after Jan. 19 unless its Chinese-owned parent company, ByteDance, divests from the platform.

Concerns about intelligence threats posed by China and potential future weaponization of the wildly popular app seemed to override concerns about potential infringement on free speech rights during oral arguments in TikTok's last-ditch appeal to preserve U.S. operations: TikTok v. Garland.

"Are we supposed to ignore the fact that the ultimate parent of TikTok is doing intelligence work?" Chief Justice John Roberts asked the company's attorney, Noel Francisco.

ByteDance, which owns TikTok and is headquartered in China, denies any malign activity in the U.S. and has argued the law violates free speech rights of the 170 million Americans it says use the app each month. It has previously ruled out a sale.

An ABC News/Ipsos poll last spring showed 34% of adults said they used the app, which matches an estimate from the Pew Research Center. Pew also reports that 63% of 13- to 17-year-olds use the platform. Together, these add up to about 103 million users.

The poll showed just 12% of adults reported using TikTok "often," 10% said they used it "occasionally" and 12% said they use the app "rarely."

Justice Brett Kavanaugh said concerns about foreign data collection on Americans were "very strong" and that there are legitimate fears the information could be used to "turn spies or blackmail people" in the future.

Justice Amy Coney Barrett appeared skeptical of the argument that the law was directly silencing Americans. "The law doesn't say 'shut down' (TikTok)," Barrett said. "It says ByteDance must divest. If it did that, we wouldn't be here."

Justice Samuel Alito suggested that the consequences of a ban might not be drastic or necessarily long-lived. "If TikTok went dark," he said, "is there reason to doubt some other media company won't jump in?"

Justice Elena Kagan noted that Constitutional protections for free speech don't apply overseas. "The law is only targeted at this foreign corporation that doesn't have First Amendment rights," she pointed out.

Attorneys for the company and a group of TikTok creators challenging the law argued vigorously that the government could have crafted a law less restrictive on the speech of users but simply outlawing retention or transfer of data to a foreign power.

"We're not disputing the risks," Francisco said, "we're disputing the means" the government took to prevent it.

The Act defied history and tradition and the right to work with foreign speakers, said Jeffrey Fisher, the attorney for the creators.

Justice Neil Gorsuch was the most sympathetic to the plaintiff's free speech arguments, suggesting that the law is "paternalistic" and "the best remedy for problematic speech is counter-speech."

Francisco painted a stark picture of what would happen if the ban takes effect.

"We go dark," he told the Court, "essentially, the platform shuts down... What the act says is that all of the other types of service providers can't provide service either. There are enormous consequences for violating that for the service providers. So essentially, what they're gonna say is that, I think we're not going to provide the services necessary ... So it's essentially gonna stop operating."

Biden Administration Solicitor General Elizabeth Prelogar said that scenario could provide a "jolt" to ByteDance to finally make a divestment, though the company insists divestiture is impossible given the global nature of the app.

As for President-elect Donald Trump, who once signed an executive order to ban the app but more recently says he wants to "save" it, the justices discussed the possibility of giving the incoming administration some time to try one last time to work out a deal.

Attorneys for both sides agreed the Court could issue an immediate, temporary administrative stay of the ban - buying time for them to work on drafting a careful opinion while also giving Trump an opportunity to broker a compromise.

Legal analysts say it's likely the Court will weigh in within the next week.

Congress passed the law last April with large bipartisan majorities to target foreign adversary-owned platforms that collect troves of data on individual Americans and disseminate propaganda or disinformation. President Joe Biden signed it; lower federal courts have upheld it.

Lower courts have rejected the company's First Amendment challenges, saying the government's justifications are compelling, given evidence of China's extensive cyber espionage efforts and covert content manipulation.

"Unless TikTok executes a qualified divestiture," Judge Douglas Ginsburg wrote for the D.C. Circuit U.S. Court of Appeals, "TikTok's millions of users will need to find an alternative media of communication. That burden is attributable to the [People's Republic of China's] hybrid commercial threat to U.S. national security, not to the U.S. Government."

The Supreme Court heard the case on an unusually fast track, just days before a ban on TikTok is set to take effect on Jan. 19.

More than a dozen countries, including India, Canada, Australia, and Taiwan, have already blocked or restricted TikTok. In 2023, the U.S. government banned the use of TikTok on any federal devices.

If the ban is put on hold, it would signal that the court has serious concerns about free speech.

The Supreme Court's conservative majority has historically been highly deferential to the government's position on matters of national security, but the justices are also likely to be cautious about a precedent-setting decision that could silence a wildly popular communication tool.

Both sides have already spent years trying to reach a deal to institute new privacy protections and independent oversight mechanisms that would assuage concerns of U.S. officials. TikTok had proposed creating a data security subsidiary, based in the U.S., and establishing strict limits on what user data could be accessed by Chinese authorities.

Top U.S. national security agencies ultimately deemed the proposals insufficient.