Supreme Court Hears Oral Arguments in TikTok Divestiture Case

Justice Kagan: Foreign Corporations Don’t Have First Amendment Rights

​The U.S. Supreme Court heard oral arguments Friday in TikTok v. Garland, setting the table for a quick ruling – or potentially even an administrative stay, although the Court has already denied such relief once – on the question of whether the government can force China’s ByteDance to divest its holdings in the popular social media platform.
 
Based on the line of questioning from the Justices, the Court seemed inclined to uphold the ban on national security grounds. Chief Justice John Roberts said that the law is “not a burden” on the speech rights of TikTok or its users. Rather, it targets “a foreign adversary … gathering all this information about the 170 million people who use TikTok.”
 
Justice Brett Kavanaugh expressed similar concerns over the future implications of allowing a foreign-owned corporation to gather data about platform users, information that could be used in the future “to turn people, to blackmail people – people who a generation from now will be working in the FBI or the CIA or in the State Department.”
 
Justice Elena Kagan questioned whether speech rights are relevant at all, noting that: “The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights.” Justice Ketanji Brown Jackson seemed to agree, at one point suggesting the platform was “wrong” to rely on ByteDance’s putative speech rights. Freedom of association, Justice Jackson suggested, may be the more plausible legal basis for TikTok’s case.
 
It's never wise to predict where the Supreme Court will land based on questioning during oral arguments. Justices tend to lean into the devil’s advocate role, coming up with difficult questions and often esoteric extrapolations based on the fact patterns at play. Justices Amy Coney Barrett and Neil Gorsuch did just that, with the latter wondering if requiring warning labels about the dangers of foreign data manipulation would suffice to fill the role of “counter-speech” often cited as the best remedy for bad speech.
 
But this particular exercise felt a little more straightforward – possibly due to the abbreviated timeline in which the Justices must render a decision. The divestiture deadline for ByteDance is Jan. 19th – one day before Donald Trump’s inauguration.
 
The once-and-future president, for his part, has asked the Court to hit pause until after he takes office. According to a brief filed on his behalf, he seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.” Many civil liberties organizations have expressed concern over the forced divestiture of a media platform. It is undeniably a drastic action. Yet the U.S. Court of Appeals for the District of Columbia found that the measure is the result of intense legislative debate in the service of the most compelling of government interests – national security.
 
It’s hard to argue with the national security assessments of Congress, and the high Court is historically loath to do so.
 
True, the Supreme Court might do what the incoming president wants and issue a stay, sidestepping the danger of a sweeping, potentially problematic precedent. Josh Blackman, in a post published on the Volokh Conspiracy, believes that is exactly what the Court will do, particularly given the law’s tight deadline.
 
Or the Justices might, as National Review’s Dan McLaughlin writes, rule narrowly on the national security issue. Taking a position on the connected issue on “covert manipulation” of TikTok’s newsfeed is a sticky wicket with serious implications for domestic platforms, too.
 
In any event, we likely won’t have to wait long to know the Court’s decision – and begin to parse its implications.

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