Washington (CNN) — The only branch of the federal government without a social media presence will weigh the fate of one of the nation’s most popular video-sharing apps on Friday, delving into a viral fight over whether TikTok’s ties to China threaten national security.
The Supreme Court will hear more than two hours of arguments over whether a ban on the platform, approved in April with bipartisan support, can be squared with the First Amendment. If at least five justices believe that it can, TikTok would either need to find a new owner or shut down in the US on January 19.
TikTok, which boasts an estimated 170 million users, will argue before a Supreme Court that is famously technology-averse – much of its work is still done on paper – and that tends to defer to the White House and Congress on national security matters. But the app’s supporters say the importance of free speech outweighs “speculative” fears about data collection and content manipulation by a foreign adversary.
In recent years, the high court has tended to gingerly side with the social media behemoths that have come before it, delivering wins for the industry but leaving fundamental questions unresolved about what the Founding Fathers might have thought about global platforms that bring millions of eyeballs to quirky cat videos but also misinformation and hate speech.
At times, the court has approached the evolving technology with a dose of humility.
“We really don’t know about these things,” Justice Elena Kagan quipped during arguments in a 2023 case about whether Twitter and other platforms should be shielded from legal liability for their content curation.
“You know, these are not like the nine greatest experts on the internet,” Kagan added.
Here’s what to watch for during Friday’s hearing:
Is TikTok a threat?
Among the Biden administration’s leading arguments is that TikTok represents a “grave” threat to national security, both because it collects “vast swaths of data” about tens of millions of Americans and because China could “covertly manipulate” the platform to sow discord and disinformation.
If a majority of justices appear to be embracing that claim, it would be a very bad sign for TikTok.
The Supreme Court has a long history of deferring to the other branches when questions of national security come up. A federal appeals court in early December unanimously concluded that the government established a need to force TikTok to split with its Chinese-based parent company, ByteDance, or comply with the ban.
“The ability to shape what 175 million Americans see on TikTok means that for the vast majority of Americans under the age of 30 who use TikTok as their primary news source, the Chinese government is controlling and shaping that news feed,” said Jamil Jaffer, a former chief counsel to the Senate Foreign Relations Committee who founded the National Security Institute at George Mason University.
That, combined with the data China collects both through TikTok and through well-publicized hacks, he said, “are enough of a national security threat to support the government’s effort to force divestment of TikTok to a US entity.”
Jaffer, who served under former Republican Tennessee Sen. Bob Corker on the committee, was one of several former national security officials who submitted a brief to the Supreme Court backing the government.
But TikTok backers say the Biden administration, in defending the ban enacted by Congress, hasn’t provided concrete proof of Chinese abuse. The DC Circuit, though it sided with the administration, noted that officials had not provided “specific intelligence” showing the China “in the past or is now coercing TikTok into manipulating content” in US.
“The threat here is really nebulous,” said David Greene, civil liberties director at the Electronic Frontier Foundation.
Justice Barrett may be an influencer
Justice Amy Coney Barrett, a member of the court’s conservative wing who is often seen as a key vote, will be among the most important justices to watch during Friday’s hearing. That’s because the 2020 Donald Trump appointee is the only member of the bench to publicly touch on the issues at play in the case in recent months.
When the court declined last July to settle a major First Amendment dispute over laws in Texas and Florida intended to protect conservative views online, Barrett agreed with that outcome but wrote separately to stress her belief that earlier decisions by the court make clear that “foreign persons and corporations located abroad do not” possess First Amendment rights.
“So a social-media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny,” Barrett wrote. “Courts may need to confront such questions when applying the First Amendment to certain platforms.”
Some legal experts said that Barrett’s comments could be seen as the justice previewing her willingness to back the federal ban, which was widely expected to eventually reach the high court.
“I expect that we have a preview of the court’s ultimate disposition in this case in Justice Barrett’s concurrence … where she really was looking to probably this law where she said that the First Amendment does not extend to foreign-owned corporations,” said Gus Hurwitz, a senior fellow at Penn Carey Law School who specializes in tech law and online speech issues.
But others said Barrett’s concurrence should be viewed through a much more limited lens.
“I think it’s pretty clear that Barrett wanted to be 100% clear that she was not deciding in the NetChoice case that the same protections that would apply to American platforms would necessarily apply to foreign platforms,” said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. “But I think she was reserving the question rather than deciding it.”
Trump card
One element to watch: whether any of the justices raise Trump and his incoming administration as a way to avoid resolving the weighty First Amendment questions at the center of the case.
In an extraordinary brief last month, Trump asked the court to temporarily pause the law’s January 19 deadline to give his administration “the opportunity to seek a negotiated resolution of these questions.”
Trump takes office on January 20.
“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government – concerns which President Trump himself has acknowledged,” attorneys for the president-elect wrote, referring to Trump’s own effort during his first term to ban TikTok.
The Supreme Court normally wouldn’t entertain such a request from someone who isn’t a party in the case. But the court could acknowledge Trump’s suggestion even if it doesn’t officially do so in response to his request. That’s because pending before the justices is not only a constitutional challenge to the ban but also separate requests from TikTok and users of the platform for the court to temporarily block the law while it’s being scrutinized. That approach would, for practical purposes, hand the matter over to the incoming president attempt to resolve.
When the court agreed last month to hear the case, it said it would hold off on considering those emergency requests until it hears arguments over the law, meaning a decision on whether to shelve the law for some period of time could come as soon as Friday.
Now stream this
As an institution wed to tradition, the Supreme Court has a reputation of rebuffing technology – at least in its own practices, if not its rulings.
The justices have ardently rejected televising their arguments. By contrast, Canada has invited cameras into the courtroom for more than a decade. The high court has livestreamed audio of its arguments since the pandemic but shuts that stream down when announcing opinions.
And neither the court itself nor any of its members have a public presence on social media. So when technology cases make their way into the ornate courtroom, it’s often worth watching how the justices – with an average age pushing 65 – handle the finer points of the internet age.
“So what do we do with what was then Twitter? I’m going to continue to call it Twitter because that’s what it is here, okay?” an exasperated Justice Sonia Sotomayor said during arguments in late 2023 in a case involving whether public officials could block voters from their social media accounts.
Friday, the court will be thinking about a tech platform that has an immense resonance with teenagers and young adults. One survey found that 17% of teenagers report using TikTok “almost constantly.”
The tech-unsavvy dynamic at the high court has led to some awkward moments – like the time when someone forgot to mute their microphone during remote arguments and a flushed toilet could clearly be heard on the audio stream. It’s also provided rich material for Kagan, who is often quick with a self-deprecating joke.
“The justices are not necessarily the most technologically sophisticated people,” Kagan told an audience in 2013. “The court hasn’t really ‘gotten to’ email.”
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