Not since the age of the personal computer dawned in the early 1970s has the Supreme Court faced a more challenging Information Age task. Back in session this week, the Justices will try to figure out whether 14 words written into the Constitution 234 years ago allow the government to regulate the Internet of today.
These are the words at issue, added to the Constitution in 1791 as part of the First Amendment in the original Bill of Rights: “Congress shall make no law abridging the freedom of speech, or of the press.”
For nearly a half-century, all three branches of the federal government have watched the unimaginable growth of a medium that created an electronic voice for almost any human being who can get access to a digital device. At first curious, then wary, and lately alarmed, the Presidency and Congress last year stirred themselves into a bold response, and that has now sent a First Amendment controversy of fearsome urgency to the Supreme Court.
Going to the bench for a special sitting next Friday morning, the Justices will spend at least two hours exploring this constitutional question: Does a federal law, passed nine months ago by Congress and signed by the President to require the social media app known as TikTok to break its ties to the Chinese government, violate the free-speech rights of TikTok’s California-based subsidiary and of about 170 million Americans who use that platform for entertainment and discussion?
To answer, the Court probably will have to sort out what the TikTok law was intended to do: was it seeking to control the content of what appears on the platform (probably making the law invalid under First Amendment free-speech principles), or did it seek only to change the ownership (maybe allowing TikTak to continue operating in the United States)?
TikTok, its Chinese parent and its American users argue that the law is pure, unconstitutional censorship, while the government argues that the law is aimed only at Chinese ownership and control of TikTak.
Next Friday’s hearing in TikTok Inc. v. U.S. Attorney General Merrick Garland
The Court is hearing the controversy on a much-expedited schedule. That speed is necessary because, nine days after the hearing, TikTok must either have a new buyer arranged or it will have to shut down all or most of its U.S. operations. (President Biden had the power to extend the January 19 sale deadline, but only if progress had been made on a sale. He chose not to put off that date.)
The Court clearly intends to act quickly. If it does so, and if it upholds the law and keeps in place the deadline, the practical effect might wee the shutdown of TikTok in this country, since there seems little chance of a sale occurring in time.
The Trump factor
The case took an unusual turn late in December, when President-elect Donald Trump entered the case to make his own request, asking the Court to put the ownership law on hold while the Justices consider the case. His lawyers, noting that the deadline would come just one day before Trump is to be inaugurated for a new term as President, argued that he should be allowed time to find a way to “save the platform” through negotiation after he is in the White House.
His lawyers told the Court: “This case presents an unprecedented, novel and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other. As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means.”
The legal brief said that Trump “opposes banning TikTok in the United States at this juncture.” When he was President previously, he attempted to break TikTok’s link to China, but it’s not clear what his views on the issues are now.
His lawyers suggested no specific postponement of the must-sell order, requesting only that a delay lasts while the Court reviews the dispute.
Trump’s delay request, however, may not have a solid legal footing. His status as President-elect does not appear to give him any legal right to try to affect the timing of a ruling. When this case was still in a lower court, TikTok, its Chinese parent and its U.S. users asked that court, after it had upheld the law, to block its enforcement to allow the incoming Trump Administration to react. The judges on that court said they had no power to do so.
That left the issue of timing to the Supreme Court. When it agreed last month to hear the controversy, it said it would wait until the January 10 hearing to consider the delay request as part of the whole case. Presumably, the Justices will consider Trump’s separate request for delay at that hearing. It might seem disrespectful of the President-elect for the Court to simply ignore his request.
The basics: what is TikTok, and why does the government consider it to be a threat?
TikTok’s origins and how it operates. The platform is an electronic application (an “app”) that can be accessed on a smartphone, computer or other device, directly from the Internet or from access bought in an “app store.” It is a combination of algorithms and computer programming code. Together, those are TikTok’s digital recipe, the technological ingredients that lead to a functioning platform.
TikTok, though, is not just another online attraction in the Information Age. In existence for only about eight years, it now has more than a billion users worldwide; in the United States, it has about 170 million regular users. Experts in social media technology regard it as unique, with special features that allow users to manipulate their own uses of it, trade ideas with other users, and become participants in a global theater of video clips and music. Once deemed only an entertainment medium, it has become a global town hall, a worldwide marketplace of ideas.
TikTok’s origins were described this way by Britain’s BBC News: “It actually started life as three different apps. The first was an app called Musical.ly, which launched in Shanghai in 2014 but had strong U.S. business links and a healthy audience in that market. In 2016, Chinese tech giant ByteDance launched a similar service in China called Douyin. It attracted 100 million users in China and Thailand in the space of a year. ByteDance decided it was onto something and wanted to expand under a different brand name – TikTok. So, in 2018, it bought Musical.ly, folded it in, and began TikTok’s global expansion.”
The electronic architecture of TikTok, owned and closely controlled by ByteDance, is designed to maximize engagement with, and among, its hundreds of millions of devoted users. TikTok, according to a legal brief in the Court case by current users, “allows users to create, publish, view, interact with, and share videos up to ten minutes long. From dance challenges to book reviews to do-it-yourself tutorials, TikTok videos address topics as diverse as human thought….Creators can build community across America and the world as they follow users and develop relationships with others on the app.” For example: one of the users taking part in the case is a woman who advocates for the rights of survivors of sexual assaults.
The perceived threat to the U.S. Why is such a technological marvel considered by the U.S. government to be a threat? The opening paragraph of the Biden Administration’s Justice Department legal brief sums it up: “This case concerns TikTok, a social media platform subject to the control of the People’s Republic of China (PRC) – a nation that Congress has deemed a foreign adversary of the United States.”
TikTok, the brief adds, “collects vast swaths of data about tens of millions of Americans, which the PRC could use for espionage or blackmail. And the PRC could covertly manipulate the platform to advance its geopolitical interests and harm the United States – by, for example, sowing discord and information during a crisis.”
In short, the problem, according to the U.S. government, is not TikTok, it is ByteDance and, pulling ByteDance’s strings, the Chinese communist government.
For years, official Washington has kept an “enemies list” of foreign countries whose governments are regarded by U.S. agencies to be actual or potential “adversaries” of the U.S. in military, diplomatic and economic relations, plus – more recently – information technology.
Prominent on that list now is the Chinese government. It is listed for multiple reasons, but FBI Director Christopher Wray has described the most significant: “The greatest long-term threat to our nation’s information and intellectual property, and to our economic vitality, is the counter-intelligence and economic espionage threat from China.” Indeed, Wray cited the theft of Americans’ data by China as “one of the largest transfers of wealth in human history.”
The Justice Department legal brief describes at length efforts by the U.S. government in recent years – in both the Trump Administration and the Biden Administration – to limit how ByteDance used the TikTok platform inside this country to gather data about Americans, including government employees, and potentially how it could use TikTok to advance the Chinese government’s anti-U.S. propaganda campaign.
While the Department accuses ByteDance of already having used interactive features of TikTok to collect private data from its American users, it concedes that, so far, there is no proof that ByteDance has manipulated the actual content of what is on TikTok as a way of engaging in information warfare.
At one point in 2020, then-President Trump, relying on his own presidential authority, ordered ByteDance to sell off any property used to operate TikTok in the U.S. However, that order was challenged in court and was set aside, to allow the U.S. and ByteDance to engage in talks over possible ways to ease the U.S. government’s national-security worries. Those talks ended in failure.
Congress, too, has been monitoring TikTok and its Chinese parent, and passed a law two years ago ordering the government to remove TikTok from all government devices. A majority of state governments took the same step. Congress eventually decided, in 2024, to take more direct action itself, passing the “Protecting Americans from Foreign Adversary Controlled Applications Act.”
The Act was passed with broad support in both houses of Congress. President Biden signed it into law on April 24. With that signature, Biden started a 270-day timetable to force ByteDance to sell everything here related to TikTok, including its California-based U.S. subsidiary, TikTok Inc. That 270-day period is to end on January 19, because Biden chose not to use a power given to him by the law to extend the deadline by 90 days.
How do ByteDance, TikTok and U.S users counter the government’s threat claims?
Aside from their core arguments that the 2024 law singles out the TikTok platform and does so in a direct attempt to control what is said or done on the app, an out-and-out speech restraint, the challengers seek to dispute that there is any provable threat. They contend that the platform has ways to limit the Chinese government’s manipulation, and that the government exaggerates the data theft by China and that it has no evidence at all that the Chinese government has ever tried to shape the content of TikTok.
The dueling arguments confront the Court with sharply divergent interpretations of what has happened on the platform, with the Justices themselves having to choose what to credit. The government has offered to bolster its claims with secret, classified data, but the lower appeals court – in upholding the 2024 law’s constitutionality — refused to consider that, judging only on what is known publicly. ByteDance, TikTok and the other challengers urged the Supreme Court not to bring in that evidence – unless it shares that material with lawyers for the challengers, restricted to attorneys with security clearances.
That raises at least the possibility that the Court might, at some point while deciding the case, go behind closed doors to analyze those secrets.
Specifically, what does the new TikTok law do?
Aimed directly at social media platforms operating within the U.S. itself that are controlled by China or any other foreign nation that has been officially designated as an “adversary” of the U.S., the 2024 law explicitly names ByteDance, TikTok and any subsidiaries to be controlled by China as an “adversary.” The bottom line is to make such a platform illegal under U.S. law.
No U.S. provider of Internet access, such as Google or Apple, is allowed to host such a platform or to make it available through an app store.
While the Justice Department notes that the law does not bar any current user who has downloaded the app from continuing to use it, the probable real-world effect is that the app will not be available in the U.S. if TikTok does not get a new owner and must shut down inside U.S. territorial borders.
If anyone violates the law, the government can prosecute, and that can result in severe penalties. Each violation can be assessed a fine of $5,000 multiplied by the number of U.S. users of the platform. Because of TikTok’s vast American user audience, it is estimated that such a penalty could reach $850 billion.
TikTok, under the law, could continue to operate within the U.S. only if ByteDance sells all of its U.S.-used property and assets to a new buyer approved by the President after an inter-agency review to assure that there is no longer any tie to a foreign adversary government.
The law allowed legal challenges to its requirements, to be pursued in the federal appeals court that sits in Washington, D.C. ByteDance, TikTok, its American subsidiary and a group of U.S. users pursued separate challenges. In a unanimous ruling by a three-judge appeals court panel in early December, the law was upheld against a First Amendment challenge, based largely on the panel’s acceptance of the combined view of the Executive Branch and Congress regarding the perceived threat from the Chinese government through ByteDance. Two appeals were taken to the Supreme Court, which will hear them together.
The significance of this controversy
Merely by acting with extraordinary speed to hear this constitutional dispute, the Supreme Court has demonstrated its significance. There are two exceedingly weighty interests at stake: the breadth of the right of free speech in the still rapidly developing digital sphere, and the government’s power to combat cyberwarfare waged by an electronic superpower, China.
The Biden Administration Justice Department has been trying throughout this case’s unfolding to show that the First Amendment is not actually at issue because, it insists, the law does not control what is seen or heard on TikTok.
That claim did not work in the appeals court when the law was reviewed there, even though those judges did uphold the law; the claim may not fare better in the Supreme Court. After all, the two specific threats that government officials see in a China-owned TikTok are tied directly to the electronic architecture of the platform that, the government argues, enabled it to steal valuable data and potentially to inject dangerous misinformation, and that architecture is fundamentally a mode of expression. The Supreme Court has already ruled that the constitutional shield from government control extends to modern media.
At the same time, though, there is a long-standing tradition at the Court, in old times and new, of allowing the President and the Executive Branch wide discretion in matters of foreign policy and national security. Moreover, today’s conservative majority of Justices has shown it favors a robust Presidency in general. And, in this case, the power of the Presidency in acting against ByteDance is buttressed by firm support from another branch, too: Congress. How boldly will the third branch, headed by the Court, be willing to resist that combination?
Friday’s hearing may well provide some clues on how the Court is thinking about its own role as the ultimate arbiter of constitutional meaning, in an arena in which it has always had real doubts about its own ability to make sensitive judgments: managing foreign affairs and national security.
Will Donald Trump’s entry into this controversy, seeking to keep open options for himself as the soon-to-be President, influence how the Court handles this case? Trump’s lawyers did not help his claim by making it in an 18-page brief that was decidedly political in tone (boasting about Trump’s supposed “powerful electoral mandate from American voters”). It also was brash and strident in claiming that Trump has a special deal-making power to resolve the dispute.
Is the Court willing to create a whole new precedent, giving itself the power to override a deadline set by Congress with presidential approval in a new federal law, even before the Court itself has decided whether that law is valid or is unconstitutional?
The Court, of course, is aware that after Trump’s inauguration this month, he will have a new team of White House and Justice Department lawyers that might take a position different from that of President Biden’s legal team. With the January 19 deadline looming, mere days after the Justices’ hearing, will they be able to decide this major constitutional dispute that fast? Or, perhaps sensing the deep difficulty of making that decision, might they want instead to wait and see where the new government stands?
It is often said, sometimes cynically, that with five Justices in control of everything the Court does, anything is possible if it can attract any combination of five.
Next Friday’s hearing can be heard “live” (audio, but no video) on the Supreme Court’s home page, supremecourt.gov, and on C-Span TV network’s Supreme Court tab. The hearing will begin at 10 a.m. and is scheduled for two hours, but is not limited to that. Once the hearing ends, the Justices can act at any time.
