This article was written by me, Franklin, with the assistance of AI to quickly analyze and pull data from the transcript.
Quick Overview:
- Overall, the Justices’ questioning reveals a careful and nuanced approach to the complex issues presented by this case, but things are not looking great for TikTok. It seems that SCOTUS will not block the law and TikTok will face a ban.
- The Justices appear to be grappling with the balance between national security concerns and First Amendment rights in the context of an increasingly globalized and technologically driven world.
- The central issue is the legality of a U.S. act mandating TikTok’s divestiture from its Chinese parent company, ByteDance, citing national security concerns.
- TikTok and Creators argue the act violates TikTok’s First Amendment rights by indirectly restricting its speech due to the imposed divestiture, claiming the government’s true aim is content control, not data security.
- The government counters that the act targets foreign adversary control, not speech itself, arguing that a foreign entity lacks First Amendment protections and that the divestiture is necessary to prevent covert data manipulation and national security risks.
- The Justices’ questioning probes the nature of the First Amendment implications, the level of scrutiny applicable, and the feasibility and necessity of the divestiture as a remedy.
Today, the Supreme Court of the United States (“SCOTUS“) heard oral arguments in the case of TikTok v. Garland, which centers around the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act“). This Act, also commonly referred to as the “TikTok Ban,” mandates the divestiture of TikTok, a popular social media platform, from its Chinese owner, ByteDance, due to national security concerns.
The arguments were presented by Noel Francisco on behalf of TikTok and ByteDance, Jeffrey Fisher on behalf of a group of American content creators who use the platform, and Elizabeth Prelogar, the 48th Solicitor General of the United States and serves as the fourth-ranking individual at the Department of Justice, on behalf of the government.
Legal scholars are all over the map in terms of guessing the split of the outcome, but many are learning toward it being a plurality (just short of a majority) with Justices Gorsuch, Sotomayor, and Kagan supporting TikTok.
An Active Bench of Justices
Overall, this was an active bench with many of the Justices involved and in a range of substantive ways. When I used Google’s NotebookLM to analyze the transcript, it appears that Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett were the most active in their questioning. These Justices engaged in extended dialogues with the attorneys, probing the various arguments and expressing specific concerns about the Act.
Justice Jackson was somewhat less active but still engaged in substantial questioning, particularly focusing on the potential First Amendment implications of requiring disclosure as a less restrictive alternative.
Chief Justice Roberts was relatively less active in questioning compared to some of his colleagues, but his inquiries focused on key issues, such as the government’s reliance on classified evidence and the feasibility of divesting TikTok within the Act’s mandated timeframe.
Justice Thomas was the least active in questioning during these oral arguments, posing only a few brief questions.
However, it is important to note that the level of activity during oral arguments does not necessarily indicate how a Justice will ultimately rule on the case. It’s possible that some Justices who were less vocal during the arguments may have strong views on the matter but chose to allow their colleagues to lead the questioning. The Justices’ questions are just one piece of the puzzle in understanding how they may approach this complex and impactful case.
TikTok’s Arguments: Content-Based Restriction, Targeting of Speech
Francisco argued that the Act constitutes a content-based restriction on speech, targeting TikTok specifically due to concerns about its potential to disseminate content critical of the U.S. or supportive of foreign interests. He pointed to statements from lawmakers expressing concerns about such content as evidence of the Act’s motivation. This, Francisco argued, triggers strict scrutiny, the highest level of judicial review for laws potentially infringing on the First Amendment.
In his opening, Francisco emphasized the unprecedented nature of the Act, stating, “Under the Act, one of America’s most popular speech platforms will shut down in nine days”, highlighting the severity of the restriction and its impact on millions of Americans.
Chief Justice John Roberts was one of the first to ask, “Are we supposed to ignore the fact that the ultimate parent [company] is in fact subject to doing intelligence work for the Chinese government?”
When questioned by Justice Alito about whether the Act’s focus on data security could be considered content-neutral, Francisco responded that the “asserted interest is in data security. I think I would have a couple of arguments under whatever form of scrutiny you apply, which is, we think that they can’t prove that the concern is actually data security, not the content of the speech.”
The Justices also seemed to not engage with any concept of President-elect Donald Trump coming to the rescue (or not) of the mobile app. Trump’s name came up once and wasn’t really picked up on as a discussion or consideration point.
Content Creators’ Arguments: Interference with Publisher Choice, Right to Receive Information
Fisher, representing the content creators, argued that the Act violates their First Amendment rights by restricting their freedom to choose their preferred platform for expression. He drew a parallel between the Act and a hypothetical law forcing the sale of X, arguing that content creators who rely on the platform for their livelihood would have a legitimate First Amendment claim in such a scenario. He added that “American creators have a right to work with the publisher of their choice.”
Fisher also highlighted the Act’s impact on Americans’ right to receive information from foreign sources, invoking the principle established in Lamont v. Postmaster General, which recognized the right of citizens to access information from abroad. He argued that the Act’s restriction on TikTok would similarly limit the flow of information to American users, particularly concerning news and events in China.
It’s worth noting that, from the court of appeals, Chief Judge Srinivasan, in his concurring opinion, distinguishes Lamont from TikTok v. Garland. He argues that the TikTok case “does not involve the ‘narrow ground’ on which the Court rooted its decision in Lamont: an affirmative obligation to out oneself to the government in order to receive communications from a foreign country that are otherwise permitted to be here.”
Government’s Arguments: National Security Threat, Tailoring of the Act
Solicitor General Prelogar, representing the government, emphasized the significant national security threat posed by TikTok’s Chinese ownership. She argued that the Chinese government’s control of the platform enables it to collect vast amounts of sensitive data on American users and potentially manipulate content to serve Chinese interests.
Solicitor General Prelogar asserted that “The Chinese government’s control of TikTok poses a grave threat to national security. No one disputes that the PRC seeks to undermine U.S. interests by amassing vast quantities of sensitive data about Americans and by engaging in covert influence operations”.
She maintained that the Act is narrowly tailored to address this threat, focusing solely on foreign adversary control of the platform and not seeking to regulate specific content. Solicitor General Prelogar argued that less restrictive measures, such as disclosure requirements, would be insufficient to mitigate the national security risks posed by the Chinese government’s potential access to user data and ability to manipulate the platform’s algorithms.
“But imagine if you walked into a store and it had a sign that said
one of one million products in this store causes cancer, that is not going to put you on notice about what product is actually jeopardizing your
health. And I think that’s roughly equivalent to the type of disclosure they’re contemplating here.”
– Solicitor General Prelogar
When questioned by Justice Gorsuch, she further distinguished this approach from non-foreign adversary controlled social media platforms, which are arguably not a weapon.
Concerns Regarding “Covert” Manipulation and the Algorithm
Justices Gorsuch, Thomas, and Barrett raised concerns about the government’s emphasis on the potential for “covert content manipulation,” questioning whether this distinction applies equally to all social media companies. Justice Gorsuch stated, “Every editor, every newspaper in its editorial room makes decisions about what it’s going to run and how it’s going to say it. And every algorithm has preferences, whether it’s domestic or foreign”.
Solicitor General Prelogar responded that the risk of covert manipulation is heightened when a foreign adversary controls the platform, particularly one with a history of suppressing speech.
Potential for Divestiture and the Deadline
When questioned about the feasibility of divesting TikTok within the timeframe mandated by the Act, Francisco pointed to the complexity of separating the platform’s underlying source code from ByteDance’s control, citing this as a significant obstacle.
Justice Barrett inquired about the possibility of extending the deadline, but Solicitor General Prelogar suggested that doing so would raise statutory interpretation questions about exceeding the time period for divestiture specified in the Act.
She also noted that TikTok and ByteDance have been on notice since as early as 2020.
“With respect to the feasibility of divestiture, my friends have said it would have been impossible to do this within 270 days. You know, at the outset, obviously there’s no inherent impediment to divesting a social media company. We just saw Elon Musk buy X, or Twitter, in about six months from offer to completion.
And even with respect to this particular company, I think my friends are not well positioned to complain about the timeline because they’ve been on notice since 2020 that unless they could satisfy the federal government’s national security concerns, divestiture might be required.”
– Solicitor General Prelogar
Eek!
Poison Pill and Unresolved Factual Disputes
The D.C. Circuit, where this case originated, and the Supreme Court, where the case is currently being appealed, are not courts of fact finders because of the specific jurisdictional grant provided by the Act. Because the D.C. Circuit heard the case first, it conducted a review of the administrative record, rather than conducting a trial with fact-finding.
The Supreme Court’s review is then limited to the record established in the D.C. Circuit. Therefore, both courts are operating as appellate courts, reviewing legal arguments and the existing record, not establishing facts through witness testimony and evidence presentation. This unusual setup is alluded to throughout several moments of the arguments, and as noted by several justices.
Fisher raised a crucial point during his argument, suggesting that even if the Act were to survive strict scrutiny, it might be unconstitutional due to what he termed a “poison pill” provision that is within the Act. This provision would prohibit TikTok from engaging in any transactions with ByteDance post-divestiture, even if those transactions were unrelated to the concerns about data security or content manipulation. He stated, “So even if you could pass strict scrutiny, the idea is that there’s a poison pill in this law that taints the entire statute”.
Justice Gorsuch also highlighted certain unresolved factual disputes between the parties, particularly concerning TikTok U.S.’s autonomy in managing the platform’s algorithm and the Chinese government’s stance on forced divestment.
The Impact of a Shutdown on the Creator Economy
The potential shutdown of TikTok has sparked widespread concern among creators, many of whom have built entire businesses on the platform’s rapid-fire video format. For small and independent creators in particular, TikTok has been a vital discovery engine and a reliable source of income through brand sponsorships, merchandise sales, and direct fan support.
If the Supreme Court upholds the law requiring TikTok’s U.S. operations to divest—or face a ban after January 19—these creators will have to scramble to build and engage audiences elsewhere.
While platforms like Instagram and YouTube stand ready to absorb a portion of TikTok’s user and advertising base (as highlighted in the accompanying EMARKETER pie chart showing Meta and YouTube capturing about half of reallocated ad dollars), the upheaval could be devastating for creators accustomed to TikTok’s unique blend of short-form content, social commerce features, and global reach.
A ban would also disrupt TikTok’s critical role in fueling ecommerce and live shopping trends. As Jasmine Enberg of EMARKETER notes, no single platform replicates TikTok’s integration of media, advertising, ecommerce tech, and logistics infrastructure. Sellers—from major retailers to individual merchants—rely on TikTok to drive discovery and sales, especially during live commerce events. Startups like Whatnot are already positioning themselves as alternative live shopping destinations, but for many creators, losing TikTok would mean losing both an audience and a marketplace overnight. This uncertainty underscores the larger risk: if TikTok is forced offline, it will leave a significant gap in the creator economy that other platforms may struggle to fill, at least in the short term.
During a webinar last month, I brought up the downstream impact of the ban, such as on the music industry with royalty payments and music discovery. It’s just one of many widespread economic impacts that are likely to come.
The case is TikTok Inc., et al., Petitioners, v. Merrick B. Garland, Attorney General, No. 24-656. View the full docket.
Watch the full oral arguments at the Supreme Court below. Note that I prefer the CSPAN coverage since their feed identifies the speakers.
