WASHINGTON – Supreme Court justices expressed deep skepticism Friday about TikTok's defense of free speech, signaling they are unlikely to strike down the law that could shut down the popular video site the day before President-elect Donald Trump is sworn into office.
Both conservative and liberal justices said Congress was concerned about Chinese ownership of TikTok and the threat to national security.
They said the law in question was not an attempt to restrict freedom of expression.
“Congress doesn’t care about what’s on TikTok,” said Chief Justice John G. Roberts Jr. “Congress is not comfortable with a foreign adversary collecting all this data on 170 million Americans.”
He said he knew of no precedent that would have called for repealing such a law on First Amendment grounds.
All judges seemed to agree in their comments and questions.
“This law targets a foreign corporation that does not have First Amendment rights,” said Justice Elena Kagan.
In recent years, judges have frequently rejected federal regulations, usually on the grounds that Congress did not authorize such broad regulation.
But they have concerns about rejecting a resolution from Congress, especially one based on a national security claim.
The shutdown law is scheduled to come into force on January 19th.
“We are going into the darkness. “We are closed,” TikTok lawyer Noel Francisco told the court if it did not act.
Even if the judges are not prepared to strike down the law as unconstitutional, they should still issue an order temporarily delaying the law's entry into force.
“A short reprieve would make all the difference,” he said, suggesting that Trump might try to negotiate a deal that could keep TikTok afloat.
In 2020, Trump issued an executive order requiring TikTok to divest from Chinese ownership, but it was blocked by the courts.
President Biden and Congress took up the issue after receiving classified briefings about the potential threat from ByteDance, the Chinese-controlled company that operates TikTok.
The government tried to negotiate a deal that would separate TikTok from Chinese control but failed.
The shutdown bill was supported by large bipartisan majorities in the House and Senate, and Biden signed it in April. According to its provisions, the law should come into force in 270 days, on January 19.
The justices agreed to grant summary judgment on TikTok's First Amendment challenge and are expected to issue a decision within days.
If the law goes into effect, it would be illegal for service providers like Google or Apple to distribute or maintain “an application controlled by foreign advice” in the United States. Violations can result in large civil penalties.
TikTok's best hope could now rest on Trump. Last year, he changed his perspective on TikTok and found it helped him reach young voters.
Two weeks ago, he filed a brief asking the court to step aside and allow him to strike a deal with TikTok's owners.
None of the justices asked about Trump's intervention.
The law provides for a one-time extension of up to 90 days if the president determines that “significant progress” has been made toward organizing a “qualified divestiture.”
It is not clear whether Trump could invoke this provision to delay the law's entry into force.
Lawyers for TikTok called the law an unprecedented attack on the 1st Amendment.
“The closure of the platform will silence the speech of 170 million monthly American users,” they said.
But Congress and the Biden administration said the Chinese platform gives the People's Republic of China access to “vast amounts of data on tens of millions of Americans” that it “could use for espionage or blackmail.”