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TikTok Warns of Broad Impact if Supreme Court Approves Ban

During Supreme Court arguments concerning a law that would necessitate TikTok’s sale or its prohibition in the U.S., the attorney representing TikTok and its Chinese owner ByteDance cautioned that such actions against TikTok could potentially extend to other firms.

The debated legislation imposes a deadline of January 19 for ByteDance to either divest from the popular social media platform or face prohibition based on national security concerns.

ByteDance and TikTok are seeking to at least postpone the law’s application, arguing that it infringes on the First Amendment of the U.S. Constitution by limiting free speech.

Noel Francisco, the lawyer for TikTok and ByteDance, contended that approving this law could pave the way for similar actions against other businesses.

“AMC movie theaters used to be owned by a Chinese company. Under this theory, Congress could order AMC movie theaters to censor any movies that Congress doesn’t like or promote any movies that Congress wanted,” Francisco told the justices.

During the hearing, the justices appeared likely to support the law, though some voiced significant reservations about its implications for the First Amendment.

TikTok, with about 170 million American users, was targeted by this legislation, which received strong bipartisan support amid concerns over potential Chinese government misuse for surveillance and influence operations.

Jeffrey Fisher, representing TikTok content creators opposing the law, highlighted during the arguments that the focus was peculiarly on TikTok, excluding major Chinese e-commerce platforms like Temu, which also serve millions of American users.

“Would a Congress really worried about these very dramatic risks leave out an e-commerce site like Temu that has 70 million Americans using it?” Fisher asked.

“It’s very curious why you just single out TikTok alone and not other companies with tens of millions of people having their own data taken, you know, in the process of engaging with those websites and equally, if not more, susceptible to Chinese control.”

President Joe Biden, a Democrat, enacted this legislation, which is staunchly defended by his administration. The divestiture deadline is strategically set just a day before Donald Trump, a Republican and opponent of the ban, assumes the presidency.

Foreign Adversaries

Solicitor General Elizabeth Prelogar argued for the necessity of the law’s timely enforcement to compel ByteDance toward divestiture, emphasizing the reluctance of foreign adversaries to relinquish control over significant communication channels in the U.S.

“Foreign adversaries do not willingly give up their control over this mass communications channel in the United States,” Prelogar said.

“When push comes to shove, and these restrictions take effect, I think it will fundamentally change the landscape with respect to what ByteDance is willing to consider.”

“And it might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process,” Prelogar added.

Should the ban be implemented on January 19, Apple and Google’s Alphabet would be restricted from offering TikTok for new downloads, although the app would remain accessible to current users.

Both the U.S. government and TikTok agree that the app’s performance would deteriorate and eventually cease to function due to the inability of companies to provide necessary support services.

The Supreme Court considered whether the potential use of TikTok for secretive influence operations or propaganda by China could warrant its prohibition.

Francisco asserted in court, “Everyone manipulates content. Many believe outlets like CNN, Fox News, the Wall Street Journal, and the New York Times manipulate their content. Such activity is fundamentally protected speech.”

On December 27, Trump urged the court to delay the January 19 deadline, aiming to grant his upcoming administration a chance to seek a diplomatic solution to the issues being contested.

According to the legislation, the U.S. president is authorized to postpone the January 19 deadline by 90 days, though the current conditions, where ByteDance has not visibly attempted to divest TikTok’s U.S. operations, do not support such an extension.

The statute requires the president to confirm that substantial progress has been made toward the sale, including the establishment of binding legal agreements.

Nevertheless, Trump will not assume the presidency until after the deadline has passed, although Francisco mentioned, “we might be in a different world” once Trump returns to the White House.

Justice Brett Kavanaugh questioned Prelogar on whether the president has the authority to decide against enforcing this law.

“I think, as a general matter, of course, the president has enforcement discretion,” Prelogar said.

“Again, that’s one of the reasons why I think it makes perfect sense to issue a preliminary injunction here and simply buy everybody a little breathing space,” Francisco said.