Today, the U.S. Supreme Court heard arguments challenging the federal law that requires TikTok, which is owned by Chinese company ByteDance, to either shut down or find a new owner. WSJ’s Jess Bravin breaks down the arguments from each side. Further Listening: -How TikTok Became The World’s Favorite App -A TikTok Star Wrestles With the App's Possible Ban -What's Up With All the TikTok Bans? -House Passes Bill to Ban TikTok Further Reading: -Supreme Court Questions TikTok’s Arguments Against Ban -How TikTok Was Blindsided by U.S. Bill That Could Ban It Learn more about your ad choices. Visit megaphone.fm/adchoices
Chapter 1: What happened at the Supreme Court regarding TikTok?
Today, the Supreme Court took up the TikTok ban.
We will hear argument this morning in case 24656, TikTok versus Garland, and the consolidated case.
The justices will determine whether or not the law banning TikTok in the U.S. will go ahead. It's slated to go into effect January 19th.
Today was an exciting hearing at the Supreme Court. The courtroom was filled, but no, it was tense and it was interesting and it dealt with some very important issues.
That's our colleague Jess Braven, who covers the Supreme Court. Big picture, what's at stake in this hearing?
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Chapter 2: What arguments are being made for and against the TikTok ban?
Well, what's at stake here is the future of TikTok, the viral social media app that 170 million Americans use each month. The government says that TikTok presents a national security threat to the United States if it remains in the control of China, a designated foreign adversary. But TikTok says, no, those threats are overblown.
And a group of American users of the app also challenged the law, saying that their free speech rights are infringed if the app they love is taken away.
Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Friday, January 10th. Coming up on the show... Will the Supreme Court uphold the TikTok ban?
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After Congress passed a law last year that threatened TikTok, people on the platform had big reactions.
I've learned so much on TikTok. I have made so many friends on TikTok. I have made so many connections. They're not taking this away from me.
Influencers aren't out of touch for crying about the TikTok ban. You're out of touch for not realizing this is a real industry.
We will be fine without TikTok, but I don't want to have to be.
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Chapter 3: How does the TikTok ban relate to First Amendment rights?
The act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a ban or a divestiture, one thing is clear. It's a burden on TikTok's speech. So the First Amendment applies.
He argued that TikTok is a U.S. company, meaning the subsidiary of ByteDance that operates in the U.S. It's not directly run by the Chinese parent company. And that it has First Amendment rights and that it should be able to use the algorithm that ByteDance has to promote this content throughout the U.S.
And that it said the government didn't seriously explore less restrictive ways to achieve its national security ends. And he suggested that, say, having disclosure about risks of using the app would be one solution.
How did the justices respond to the TikTok argument?
They were skeptical. They seemed to look at the government's solution, that being divestiture, as being not particularly novel. Divesting assets is a very typical way that the government achieves certain goals. So I would say that he ran into some trouble in arguing that TikTok USA was really so different from ByteDance in Beijing. Yeah, he had a pretty tough row to hoe there.
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Chapter 4: What are the implications of TikTok being a foreign company?
Chapter 5: How do users feel about the potential TikTok ban?
After Congress passed a law last year that threatened TikTok, people on the platform had big reactions.
I've learned so much on TikTok. I have made so many friends on TikTok. I have made so many connections. They're not taking this away from me.
Influencers aren't out of touch for crying about the TikTok ban. You're out of touch for not realizing this is a real industry.
We will be fine without TikTok, but I don't want to have to be.
TikTok went to court to block the law. And that's how this case got to the Supreme Court today. First up was TikTok. The company's lawyer, Noel Francisco, laid out TikTok's arguments that the law was a violation of the First Amendment, of TikTok's freedom of speech.
The act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a ban or a divestiture, one thing is clear. It's a burden on TikTok's speech. So the First Amendment applies.
He argued that TikTok is a U.S. company, meaning the subsidiary of ByteDance that operates in the U.S. It's not directly run by the Chinese parent company. And that it has First Amendment rights and that it should be able to use the algorithm that ByteDance has to promote this content throughout the U.S.
And that it said the government didn't seriously explore less restrictive ways to achieve its national security ends. And he suggested that, say, having disclosure about risks of using the app would be one solution.
How did the justices respond to the TikTok argument?
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Chapter 6: What did Jeffrey Fisher argue on behalf of TikTok creators?
Chapter 7: How did the justices react to TikTok's arguments?
Justice Elena Kagan asked TikTok's lawyer outright if ByteDance's algorithm can be separated from the platform.
And I guess my question is, how are those First Amendment rights really being implicated here? This statute says the foreign company has to divest. Whether or not that's feasible, however long it takes, TikTok still has the ability to use whatever algorithm it wants, doesn't it? No, Your Honor.
ByteDance has control of the algorithm that serves TikTok users their videos. And the justices kept pressing TikTok's lawyer on whether the app could operate without that algorithm. Here's Justice Katonji Brown-Jackson.
If TikTok were to post-devastature or whatever, pre-devastature, come up with its own algorithm, right, then when the divestiture happened, it could still operate. It doesn't say TikTok, you can't speak.
I think that's theoretically correct, Your Honor, but I think that also underscores the content-based nature of the restriction.
No, but the fact that that's true suggests that you're wrong about the statute being read as saying TikTok, you have to go mute. Because TikTok can continue to operate on its own algorithm, on its own terms, as long as it's not associated with ByteDance.
After the justices were done grilling Francisco, Jeffrey Fisher, a lawyer representing creators on TikTok, stepped up. Fisher argued against the ban and called TikTok the most vibrant speech forum in the U.S.
And the act therefore is inescapably subject to strict scrutiny because of the First Amendment implications. And the act fails that test and indeed any level of scrutiny under this court's case law because the act and the reasons behind it defy our history and tradition as well as precedent.
American creators have long and always enjoyed the right to speak in conjunction with foreign speakers or work with foreign publishers.
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Chapter 8: What are the potential outcomes of the Supreme Court's decision?
Jeffrey Fisher had a somewhat easier way with the court because he was really representing people who are Americans, and there's no dispute that Americans have First Amendment rights, and suppressing their ability to say things or hear things does run into constitutional problems. The question, though, was were his clients really the ones whose speech was being affected?
And a number of justices said, well, you know, if this is ByteDance's speech through its algorithm— a foreign adversary doesn't have any First Amendment rights in the United States, the fact that there are some collateral consequences that some third parties, their interests are also harmed, well, that's just kind of the way it goes.
I mean, that happens with all kinds of legal decisions and divestitures and what have you when, you know, ownership changes. And so, you know, how much attention should the court have to pay to the impact on these third parties?
After his opening statement, Fisher faced questions from justices, starting with Clarence Thomas.
How exactly are the creators' speech being impeded?
So two ways, Justice Thomas. First, I just point you to the text of the statute, which directly regulates text images, communicate real-time communications, videos. My clients, the creators, are the ones creating that speech and posting it to speak to other Americans.
But it doesn't say anything about creators or people who use the site. It's only concerned about the ownership and the concerns that data will be manipulated or there will be other national security problems with someone who's not a citizen of this country or a company that's not here.
TikTok's lawyer Francisco also suggested that if the court doesn't throw out the law, it should at least postpone it. President-elect Trump had asked the court to pause the TikTok shutdown until after he takes office. At the end of the hearing, Francisco had a final thought.
What we're talking about is ideas. And my friends on the other side, when you cut through everything else, are ultimately worried that the ideas that appear on the TikTok platform could in the future somehow manipulate Americans, could somehow persuade them, could somehow get them to think something that they ought not be thinking. Well, that whole notion is at war with the First Amendment.
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