Opinion: TikTok ban debate in Supreme Court - What went down and what the judges wanted to know

The debate over TikTok’s potential ban in the U.S. reached the nation’s highest court last Friday. The law signed by President Biden in April 2024 requires TikTok’s parent company ByteDance to divest its U.S. operations by January 19 or face a ban. In a last legal effort, TikTok argued against the ban, citing concerns about freedom of speech, content-based restrictions, and data security.

TikTok’s Arguments Against the Ban

TikTok’s main arguments revolve around the impact on freedom of speech, the discriminatory nature of the law, and potential alternatives to address security concerns. The company claims that the ban would violate U.S. users’ First Amendment rights and unfairly target TikTok as a platform for content manipulation. Additionally, TikTok suggests implementing risk disclosures to address concerns about China’s influence and proposes less restrictive measures to safeguard user data.

Despite the looming deadline and the uncertainty surrounding TikTok’s future in the U.S., the company remains adamant in its defense against the ban. The Supreme Court’s decision could have far-reaching implications not only for TikTok but also for other social media platforms facing similar challenges. Stay tuned for updates on this ongoing legal battle.
A divestment is not feasible in any timeline and is impossible because China would prevent the export of its algorithm. Even if TikTok were to do so, it would take years and the final product would be very different from what the app is today. If the government is worried about China accessing the sensitive data of American citizens, it should also be concerned about Chinese e-commerce apps like Temu and Shein. These apps have access to users’ activity across apps, including social media, along with their names, addresses, credit card information, location data, and more.

Creators’ key arguments against the ban

The law directly restricts creators’ First Amendment rights to participate and speak in the “modern public square.” The act should therefore be subject to “strict scrutiny” because American creators have always been able to speak in conjunction with foreign speakers or work with foreign publishers. Under the First Amendment, “mere ideas” do not constitute a national security risk. And restricting the right to speech is what our enemies do, not what we do in the U.S. The owner of a print media or online media publication is the “essence of the viewpoint of that publication,” just like with Fox News, MSNBC, or X. Creators should be able to work with any publication that has a particular perspective. TikTok could be used to sow doubts about democracy. That’s an “impermissible” government interest. The U.S. government can restrict Americans from associating with terrorist organizations or others that present a clear and present danger, but in this case, the government’s concerns are about the influence of TikTok’s content and algorithm. Creators have the right to work with their publisher of choice, which for them, is TikTok. The ban would prevent creators from exercising their free speech rights to work with a foreign company to publish their speech. It’s as if creators weren’t allowed to work with the BBC or other foreign companies. Companies have tried to replicate TikTok and failed, so that shows how important the app’s algorithm is to creators. It’s not fair to tell creators to simply post their work on other platforms. They are ordinary American citizens who rely on the app’s ability to reach others.

The DOJ’s arguments for the ban

[Image description: The U.S. Department of Justice (DOJ) headquarters stands in Washington, D.C.]
The law in question regarding TikTok and ByteDance doesn’t violate the First Amendment because its aim is not to regulate free speech on the platform or its algorithm. Instead, it seeks to prevent a foreign nation from accessing American data and gaining control over the platform. Even after divestiture, similar content could still be distributed on the platform.

Concerns arise from the possibility of the Chinese government compelling ByteDance to surreptitiously hand over data, including sensitive information about Americans. This raises issues of national security, especially if China gains access to personal data of future key officials in agencies like the CIA, FBI, or State Department.

In addition, ByteDance’s history of surveilling American journalists adds to the argument for divestment as a way to maintain control over critical infrastructure and communication channels without foreign influence. The focus is on preventing a foreign adversary from manipulating information to weaken the United States.

It’s clear that TikTok cannot be equated to a traditional publisher, given its capacity to collect and potentially send sensitive personal information back to a foreign entity. If the Supreme Court upholds the law, it will compel ByteDance to engage in divestment talks to ensure the app’s continued operation in the United States. This move is seen as necessary to safeguard national security interests and prevent potential threats to American data and infrastructure.
What is “TikTok speech?” This refers to the algorithm that determines the content shown on TikTok, combining editorial discretion and moderation elements. TikTok argues that this algorithm is essential for its business and should be considered part of its “speech.”

Should the court overlook the fact that TikTok is owned by a Chinese company, ByteDance, subject to Chinese law? TikTok’s lawyer contends that ByteDance does not have ultimate control over TikTok and that this should not impact its First Amendment rights.

If TikTok is entitled to First Amendment protection, what level of scrutiny should be applied? There is ongoing debate about whether high or intermediate scrutiny should be used to determine the validity of TikTok’s claims. TikTok argues that both its speech and user data security concerns warrant high scrutiny.

TikTok’s Perspective on U.S. Media Ownership

TikTok believes that the long tradition of preventing foreign control and ownership of media in the U.S. is not relevant to their situation. They argue that the past restrictions were due to “bandwidth scarcity,” which no longer applies in today’s digital age where there is no scarcity of resources.

Independence of TikTok U.S. from ByteDance

Despite the U.S. government’s claims that TikTok U.S. must follow ByteDance’s directives regarding its algorithm and recommendation engine, TikTok asserts that it is a U.S. subsidiary with the autonomy to make its own decisions. They argue that abandoning their algorithm would be a detrimental business move and that they should have their own set of First Amendment rights.

Challenges in Divestiture and Content Manipulation Accusations

TikTok faces challenges in divesting due to the complex nature of separating U.S. and global content and the time it would take to rebuild their engineering team. Additionally, they deny accusations of covert content manipulation in the U.S. and point to their transparency reports as evidence that they have not censored content globally.
The U.S. government hasn’t found evidence of covert content manipulation by TikTok in the U.S., but its parent company ByteDance has complied with China’s censorship demands. Why does TikTok deny this? TikTok’s lawyer mentioned a lack of information due to redacted records, but transparency reports show no content removal outside of China.

Why doesn’t ByteDance make the necessary information open source for TikTok to divest and continue operating? TikTok’s lawyer argued for First Amendment rights to speech, even for creators if the court disagrees. There’s no precedent for such regulation of a corporate structure involving expressive content.

What could happen next

If TikTok loses its case, the app could be removed from app stores and service providers might block access. A preliminary injunction from the Supreme Court could give TikTok time to seek help from President-elect Donald Trump. TikTok may also get an extension to find a buyer before the January 19 deadline, but shutting down is also an option.