On Friday, the Supreme Court heard oral arguments in the case related to… The future of TikTok In the United States, the law that enables Effectively block the popular app As soon as next week.
Protecting Americans from Foreign Controlled Applications Act Objectives TikTok will impose harsh civil penalties on app “entities” that provide the service after the January 19 deadline. Among the many issues the justices considered was whether the law violated the Constitution's protection of free speech.
During the argument that lasted more than two hours, the justices repeatedly questioned TikTok's top lawyer about the social media platform's ties to the People's Republic of China. They appear generally unconvinced by TikTok's main argument, which is that the law violates the free speech rights of millions of individual users in the United States.
However, questions remain about the president-elect Donald TrumpHis willingness to implement the law as soon as he takes office, just one day after it takes effect. If Trump decides not to enforce the violations, third-party providers will love it apple and Google They will face a dilemma: either follow the letter of the law or place their faith in the new administration's assurances that they can effectively ignore it.
“The consensus that the court will allow the ban to take effect appears correct,” Cornell University law professor Gautam Hans said in a statement.
“What remains unfortunate is the naivety with which many judges have approached this law, which clearly refers to free speech rights for unspecified national security reasons,” Hans said.
The TikTok argument
Noel Francisco, the US Solicitor General during President-elect Donald Trump's first term, opened the hearing in his capacity as TikTok's legal representative. He reiterated Trump's desire to do so Court to stop effective banin order to give Trump time to find Political decision For national security concerns about TikTok.
The justices peppered Francisco with questions about TikTok's ties to China-based ByteDance, which owns the social media service, and questioned TikTok's First Amendment argument against the law.
Much of the court's investigation has focused on TikTok's ownership structure. When Justice Samuel Alito asked Francisco whether he would make the same argument if TikTok were directly owned by the Chinese government, TikTok's lawyer said he would not.
But Francisco also insisted that Beijing is not forcing TikTok to make content decisions.
“We absolutely resist any kind of content manipulation by China at all,” Francisco said. Court observers have noted his careful use of the word “resist” rather than, for example, “reject.”
Jeffrey Fisher, special counsel for O'Melveny & Myers, argued on behalf of TikTok creators challenging the law.
In the interest of national security, “Congress can prevent Americans…from associating with terrorist organizations,” Fischer said. But “the government cannot come and say 'national security' and end the issue.”
“You have to dig underneath what the national security claim is,” Fisher said.
Government issue
Much of the arguments in support of the TikTok divestment law so far center around the claim that TikTok actually poses a national security threat. This was at the heart of US Attorney Elizabeth Prelogar's argument.
Americans who use TikTok may think they are “talking to each other,” Prelogar said. But in reality, “the People’s Republic of China, a hostile foreign state, is exploiting a vulnerability in the system.”
The justices pressed Prelogar on how TikTok differs from other foreign-owned outlets, such as Politico and the Oxford University Press.
“China is a hostile foreign country that exploits every opportunity it gets to weaken the United States,” she said. “If they control TikTok, it is difficult to predict exactly how they will use that as a tool to harm our interests.”
But we know she'll try, Prelogar said.
“What we are trying to prevent is not the specific topic or specific viewpoints, but the technical ability of a hostile foreign state to use a communications channel,” Prelogar said.
Regarding whether the incoming Trump administration could extend the deadline before enacting the law, Prelogar said that the US government has not yet taken a position on that.
“We haven't run it in real life, in part because it simply hasn't been offered here,” Prelogar said.
Trump is scheduled to be inaugurated on January 20, and the divestment deadline is January 19.
Regarding whether President-elect Trump could choose not to enforce the law, Prelogar said that “raises a difficult question.”
It is not clear when the court will issue its decision, and if Chinese company ByteDance continues to refuse to divest TikTok to an American company, it faces a complete nationwide ban.
What are the potential effects on users?
TikTok's roughly 115 million monthly active users in the United States could face a range of scenarios depending on when the Supreme Court issues its decision.
If no information is received before the law takes effect on January 19 and the ban continues, users will likely still be able to post or interact with the app if they have already downloaded it. However, those users likely won't be able to update or re-download the app after that date, several legal experts said.
The thousands of short video creators who generate income from TikTok through ad revenue, paid partnerships, merchandise, and more will likely need to take their business to other platforms, like YouTube or Instagram.
“Shutting down TikTok, even for one day, would be a big deal, not just for people who create content on TikTok, but for everyone who shares or watches content,” said George Wang, a staff attorney at the Knight First Amendment Institute who led the TikTok shutdown. Help write amicus briefs on this issue.
“It sets a really dangerous precedent for how we regulate online expression,” Wang said.
What comes next?
It is unclear when the Supreme Court will issue its ruling, but with the expedited hearing in the case some have speculated that the court could issue a quick ruling.
Erwin Chemerinsky, dean of Berkeley Law, said the case would have “enormous ramifications” because TikTok's user base in the United States is so large.
“It is unprecedented for the government to ban expression platforms, especially those that are used by so many people,” Chemerinsky said. “Ultimately, there is a tension between freedom of expression issues on the one hand and national security claims on the other.”
“There are good reasons to be concerned about privacy and data collection,” Cornell's Hans said.
“But this law specifically targets one platform in ways that will leave us all uneasy about whether future government action could target other platforms of expression.”
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