Supreme Court appears likely to uphold TikTok ban unless China-owned ByteDance divests

A majority of justices on the Supreme Court on Friday appeared inclined to uphold a federal law that would ban the video-sharing app TikTok in the U.S. after Jan. 19 unless its Chinese-owned parent company ByteDance divests from the platform.

The momentous case -- TikTok v. Garland -- pits one of the world's most popular social media platforms against all three branches of the U.S. government, which have aligned over the idea that the app poses a serious risk to national security.

During oral arguments, concerns about intelligence threats posed by China and potential future weaponization of the app seemed to override concerns about potential infringement on free speech rights.

"Are we supposed to ignore the fact that the ultimate parent of TikTok is doing intelligence work?" Chief Justice John Roberts asked the company's attorney, Noel Francisco.

Justice Brett Kavanaugh said concerns about foreign data collection on Americans were "very strong" and that there are legitimate fears the information could be used to "turn spies or blackmail people" in the future.

Justice Amy Coney Barrett appeared skeptical of the argument that the law was directly silencing Americans. "The law doesn't say 'shut down' [TikTok]," Barrett said. "It says ByteDance must divest. If it did that we wouldn't be here."

Justice Samuel Alito suggested that the consequences of a ban might not be drastic or necessarily long-lived. "If TikTok went dark," he said, "is there reason to doubt some other media company won't jump in?"

Justice Elena Kagan noted that constitutional protections for free speech don't apply overseas.

"The law is only targeted at this foreign corporation that doesn't have First Amendment rights," she said.

Attorneys for the company and a group of TikTok creators challenging the law argued vigorously that the government could have crafted a law less restrictive on the speech of users by simply outlawing retention or transfer of data to a foreign power.

"We're not disputing the risks," Francisco said, "we're disputing the means" the government took to prevent it.

The law defied history and tradition and the right to work with foreign speakers, said Jeffrey Fisher, the attorney for the creators.

Justice Neil Gorsuch was the most sympathetic on the bench to the plaintiff's free speech arguments, suggesting that the law is "paternalistic" and "the best remedy for problematic speech is counter-speech."

Francisco painted a stark picture of what would happen if the ban takes effect.

"We go dark," he told the court, "essentially, the platform shuts down… What the act says is that all of the other types of service providers can't provide service either. There are enormous consequences for violating that for the service providers. So, essentially, what they're gonna say is that, I think we're not going to provide the services necessary … So, it's essentially gonna stop operating."

Biden administration Solicitor General Elizabeth Prelogar said that scenario could provide a "jolt" to ByteDance to finally divest, though the company insists divestiture is impossible given the global nature of the app.

Prelogar acknowledged that "millions of Americans enjoy expressing themselves" on the app but emphasized "the important thing to recognize is that the act leaves all of that speech unrestricted once TikTok is freed from foreign adversary control."

As for President-elect Donald Trump, who once signed an executive order to ban the app but more recently says he wants to "save" it, the justices discussed the possibility of giving the incoming administration some time to try one last time to work out a deal.

Attorneys for both sides agreed the Supreme Court could issue an immediate, temporary administrative stay of the ban -- buying time for them to work on drafting a careful opinion while also giving Trump an opportunity to broker a compromise.

Legal analysts say it's likely the Supreme Court will weigh in within the next week.

Congress passed the law last April with large bipartisan majorities to target foreign adversary-owned platforms that collect troves of data on individual Americans and disseminate propaganda or disinformation. President Joe Biden signed it; lower federal courts have upheld it.

ByteDance, which owns TikTok and is headquartered in China, denies any malign activity in the U.S. and has argued the law violates free speech rights of the 170 million Americans it says use the app each month. It has previously ruled out a sale.

An ABC News/Ipsos poll last spring showed 34% of adults said they used the app, which matches an estimate from the Pew Research Center. Pew also reports that 63% of 13- to 17-year-olds use the platform. Together, these add up to about 103 million users.

The poll showed just 12% of adults reported using TikTok "often," 10% said they used it "occasionally" and 12% said they use the app "rarely."

If the ban is allowed, it would become unlawful for app stores run by U.S. companies like Apple and Google to offer TikTok downloads or updates with new features or technical fixes. It would not become a crime to use TikTok, and users who have downloaded the app could likely continue to use it for now, technology experts said.

More than a dozen countries, including India, Canada, Australia, and Taiwan, have already blocked or restricted TikTok. In 2023, the U.S. government banned the use of TikTok on any federal devices.