The Supreme Court appears likely to uphold a law that would effectively ban TikTok in the United States unless its parent company, ByteDance, divests the platform by January 19, 2025.

The core arguments revolve around national security concerns regarding China's potential access to user data and its capacity to spread disinformation via the platform, pitted against First Amendment protections of free speech and the rights of users and content creators. The Justices seemed more persuaded by the government's argument related to data security than by the disinformation claim. The possibility of a delay to the ban, requested by President-elect Trump, is being considered, but is unlikely.

Key Themes and Arguments --

National Security Concerns:

Data Collection: The U.S. government argues that ByteDance, as a company effectively controlled by the Chinese government, poses a significant national security risk because it can collect vast amounts of sensitive data on American users. This data could be used for espionage, blackmail, or turning people into spies over time.

Quote: "Congress and the president were concerned that China was accessing information about millions of Americans, tens of millions of Americans, including teenagers, people in their 20s." - Justice Brett M. Kavanaugh

Quote: "The PRC could command that ByteDance comply with any request it gives to obtain that data that’s in the hands of the U.S. subsidiary.” - U.S. Solicitor General Elizabeth Prelogar

Disinformation and Propaganda: The government also contends that China could use TikTok to spread covert disinformation and propaganda to harm U.S. interests.

"Voracious Appetite": The US government states China has a "voracious appetite to get its hands on as much information about Americans as possible" - U.S. Solicitor General Elizabeth Prelogar.

Espionage: The government argues China could use TikTok data for "espionage, surveillance operations, against the U.S." (WSJ "TikTok Ban Heads...")

First Amendment Rights:

Free Speech: TikTok and its users argue that the law violates their First Amendment rights to free speech, both in terms of disseminating and receiving content.

Quote: “It’s not enough to tell a writer, well, you can’t publish an op-ed in The Wall Street Journal because you can publish it in The New York Times instead,” - Jeffrey L. Fisher, a lawyer for TikTok users

Platform Choice: Users argue they have the right to use the platform of their choice and should not be forced to migrate to other social media sites.

Quote: "TikTok has a distinct editorial and publication perspective." - Jeffrey L. Fisher

Content Creation and Community: The ban is seen as damaging to the communities that users have built on the app.

Quote: “TikTok is where I created my community... I have made friendships. I have business partners. That’s how we connect.” - Andrea Celeste Olde, a TikTok creator.

Ownership vs. Speech: Several justices appear to differentiate between regulating the ownership of the platform (ByteDance) and restricting the content itself, suggesting the ban is aimed at the former, not the latter.

Quote: Justice Elena Kagan asked, “How are those First Amendment rights really being implicated here?”

Court's Skepticism and Division:

Data Security Focus: The justices appeared more concerned about China’s ability to harvest data than about the disinformation claims. They seemed to view data collection as a more direct threat.

Foreign Control: The Court seemed persuaded by the government's argument that the ultimate parent company of TikTok is subject to the control of the Chinese government and its intelligence apparatus.

Quote: “Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” - Chief Justice John Roberts

Disinformation Doubts: Several justices, notably Kagan, questioned whether China manipulating content on TikTok was a significant threat, as it was already common knowledge that the platform was connected to China.

Quote: “Like, people don’t know that China’s behind it? Everybody now knows that China is behind it.” - Justice Elena Kagan

Singling Out TikTok: Some justices questioned why TikTok was singled out by the law, while other data-heavy Chinese apps are not facing similar restrictions.

Possible Outcomes and Timeline:

Divestiture or Shutdown: The law mandates that ByteDance must sell TikTok by January 19, or the app will effectively be shut down in the U.S.

"Go Dark": TikTok's lawyer stated that if the court rules against the company the app will immediately "go dark."

Fast-Tracked Decision: The Supreme Court is on a fast track to rule by the end of the following week (after the January 10 oral arguments).

Limited Workarounds: While limited access through the website or VPNs is possible, functionality would be significantly reduced for users.

Divestiture After Shutdown: Even if the app is shut down, the possibility of a divestiture and subsequent re-launch exists.

Quote: "So if we were to affirm and TikTok were forced to cease operations on Jan. 19... you say that there could be divestiture after that point, and TikTok could again continue to operate.” - Justice Alito.

President-elect Trump's Role: While Trump has requested a delay to address the situation, his options are limited if the court upholds the ban.

Potential for Delay: The Supreme Court did discuss the possibility of delaying the implementation of the ban, but it remains unclear if they will agree to this.

Quote: “President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office.” - Trump brief

Alternative Solutions:

Mitigation Measures: TikTok argues for less drastic measures to address security concerns, like disclosures to warn users and limiting data sharing with China.

Divestiture: Despite the stated position of ByteDance, a forced sale could still occur if the law is upheld.

Technological and Legal Barriers: ByteDance claims that a sale is "technologically, commercially, and legally infeasible" (WSJ "TikTok Ban Heads..."). China has also signalled its opposition to a forced sale.

Government Position: The U.S. government argues that alternatives were explored but ultimately proved insufficient to mitigate security risks.

Key Quotes to Consider:

“There is a long tradition of preventing foreign ownership or control of media in the United States,” - Justice Kavanaugh (NYT)

“Congress judged it necessary to assume that risk, given the grave national security threats it perceived." - Judge Sri Srinivasan (NYT)

“The First Amendment exists to protect free speech in the United States. Here the government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.” - Judge Douglas H. Ginsburg (NYT)

“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. It might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process.” - U.S. Solicitor General Elizabeth Prelogar (WSJ "TikTok Ban Challenge...)

The Supreme Court is grappling with complex issues at the intersection of national security, free speech, and the digital age. While the justices expressed some concerns about First Amendment implications, they seem to favor the government's argument regarding the threat posed by Chinese control of TikTok's data. The fate of TikTok in the U.S. hinges on the Court's pending ruling, which is expected quickly, and the potential actions of President-elect Trump. The next week will be critical.