Under the law, known as the Protecting Americans from Foreign Adversary Controlled Applications Act, app store giants such as Google and Apple and internet-hosting services could face massive fines if they continue carrying TikTok on their products beyond January 19. Infractions could cost companies $US5000 for each user who continues to access TikTok, which could add up to billions of dollars in penalties.
Tech companies have often recoiled when faced with potential legal exposure from new regulations, and at times have threatened to pull their services out of regions entirely rather than complying with specific restrictions. Apple and Google, the two biggest app store providers in the United States, have remained mum on how they plan to handle a potential ban.
The justices of the US Supreme Court will hear oral argument on Friday (local time).Credit: AP
How quickly will the Supreme Court issue a ruling?
The court moved with extraordinary speed to schedule a special session for at least two hours of oral argument on Friday (Saturday AEDT). The justices put off a decision about whether to temporarily block the ban-or-sell law while the litigation continues. The truncated timeline suggests the justices could decide quickly after oral argument whether to temporarily put the measure on hold or allow it to take effect as planned. The court could then issue a more extensive written opinion at a later date.
The justices are reviewing a unanimous decision to allow the TikTok ban, which was issued in December by the influential US Court of Appeals for the DC Circuit. A three-judge panel sided with the Biden administration and said the law does not violate the First Amendment. The panel, comprising judges nominated by presidents from both parties, said the law does not take aim at a particular viewpoint and is a reasonable response to Congress’s national security concerns.
Has Trump taken a position on the sell-or-ban law?
The deadline for the company to divest is one day before President-elect Donald Trump’s inauguration. In an unusual court filing, he asked the Supreme Court to delay implementation of the law to give him an opportunity to act.
Donald Trump promised during last year’s presidential election to protect TikTok.Credit: Bloomberg
Trump promised during the election campaign to protect TikTok, but his filing did not take a position on the constitutionality of the law. Instead, Trump’s attorneys told the court that “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”.
That request was criticised by court watchers, including the Wall Street Journal editorial page, which said Trump “wants the Supreme Court to treat him like a second president” before President Joe Biden has left the White House.
What are the key legal arguments for and against TikTok?
TikTok’s lawyers say the sell-or-ban law, signed by Biden, is a “massive, unprecedented restriction of protected speech” that infringes on the rights of millions of Americans to engage with the content of their choice. Congress could have chosen a narrower path, it argues, to address what the company says are unfounded concerns about China accessing data of American users or trying to manipulate public opinion.
A rally in support of TikTok outside the US Capitol in Washington, DC, in March.Credit: Bloomberg
In scores of legal briefs, civil liberties advocates also urged the court not to allow the US government to limit free speech based on what they characterised as speculative harm.
Solicitor-General Elizabeth B. Prelogar, who is defending the law, told the court that the ban is not a restriction on speech, but on control of the app by a nation Congress has deemed a foreign adversary. Lawmakers in both parties have expressed concerns about China’s potential influence on the app based on briefings from senior intelligence officials.
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“TikTok may continue operating in the United States and presenting the same content from the same users in the same manner,” Prelogar wrote, “if its current owner executes a divestiture that frees the platform” from control by the People’s Republic of China.
What do the court’s earlier rulings tell us about the case?
The court has recently reviewed other cases with implications for free speech online, but without issuing decisive opinions on the merits. Both sides in the TikTok case quote from the court’s ruling involving Texas and Florida social media laws that restrict how online platforms moderate users’ posts. A majority of justices in the case known as NetChoice LLC v Paxton said a social media site’s content moderation and curation decisions are protected by the First Amendment.
TikTok’s owners compare the platform to a traditional media outlet exercising editorial discretion over content and say the First Amendment prevents Congress from interfering with those decisions.
The Biden administration acknowledges that TikTok’s signature video-recommendation algorithm and its content-moderation policies are a form of speech. But the government says the company has no First Amendment right to be controlled by a foreign adversary or to use an algorithm that the government says is developed, maintained and controlled by a foreign adversary. They are assertions the company vigorously disputes.
President Joe Biden on TikTok last year. His administration has introduced the law that could effectively shut down the platform in the US.
There are indications from past rulings that national security concerns and the involvement of foreign companies or organisations could have implications for the court’s constitutional analysis.
In a 2010 decision written by Chief Justice John G. Roberts Jr, the court rejected a First Amendment challenge to a law prohibiting “material support” to foreign organisations the State Department says engage in terrorism. In the NetChoice case last term, Justice Amy Coney Barrett seemed to foreshadow the TikTok debate when she wrote that 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”.
Can Trump ignore the court’s ruling once he’s president?
As president, Trump would not have the authority to overturn the ban outright. But he could push Congress to repeal the law or encourage his attorney-general to refrain from enforcing it. Even then, however, app store owners or web-hosting companies might be concerned about continuing to include TikTok in violation of the law.
In 2022, ByteDance offered the Biden administration an extensive proposal, known as Project Texas, that would grant the US government enormous sway over the company’s workforce and technical underpinnings in exchange for continued operation in the United States.
What does the case mean for TikTok’s future?
TikTok has cast the dispute in existential terms, arguing that if the Supreme Court upholds the law, it will shutter the app across the United States. The company has also said that even a temporary pause in operations would cause “irreparable” damage to its business.
TikTok chief executive Shou Zi Chew appears before Congress in March.Credit: AP
TikTok could fade in relevance among the many users who might shift to another short-video platform, such as Instagram Reels or YouTube Shorts. ByteDance could still offer TikTok in other countries, but the company has said the platform benefits from the participation of Americans because they can make interesting content and they end up watching everyone else.
Some Republicans are advocating for Trump to facilitate TikTok’s transfer to an American company, so it could continue to operate.
After Trump sought to ban the app during his first administration, ByteDance engaged with suitors including Microsoft and Oracle on potential deals to spin off TikTok’s US operations. Negotiations languished and ultimately unravelled.
Last year, Trump, whose presidential campaign relied on TikTok content, reversed his support for a ban. He said a TikTok prohibition could benefit US tech giant Meta.
The Supreme Court could largely take the matter out of Trump’s hands by striking down the law. But if it does not, or if it allows the law to take effect this month, Trump could seek to broker a sale or negotiate an agreement aimed at satisfying US national security concerns.
Washington Post
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