The TikTok Ban Goes to the Supreme Court

Summary

The Journal Episode: The TikTok Ban Goes to the Supreme Court
Release Date: January 10, 2025
Host: Kate Linebaugh, Ryan Knutson, Jessica Mendoza
Produced by: The Wall Street Journal & Gimlet

---

Introduction

In this pivotal episode of The Journal, hosts Kate Linebaugh, Ryan Knutson, and Jess Bravin delve into the landmark Supreme Court case, TikTok versus Garland, which challenges the legality of a federal law banning the popular social media platform TikTok in the United States. Scheduled to take effect on January 19th, this ban has ignited a heated debate surrounding national security, free speech, and the intricate relationship between American users and Chinese ownership.

---

Background of the Case

The episode opens with Kate Linebaugh announcing the Supreme Court's involvement in determining the fate of TikTok under Case 24656. Jess Bravin provides context, highlighting that TikTok boasts 170 million monthly American users and is accused by the government of posing a national security threat due to its Chinese ownership by ByteDance, a designated foreign adversary.

Key Points:

• Government's Position: TikTok's Chinese ties could allow the Chinese government to exploit user data, posing a significant national security risk.
• TikTok's Defense: The company argues that these threats are exaggerated and that their U.S. subsidiary operates independently with robust data protections.
• Constitutional Challenge: American users contend that the ban infringes upon their First Amendment rights by restricting their freedom of speech on a beloved platform.

---

Arguments Presented by TikTok

Noel Francisco, TikTok's lawyer, spearheaded the defense by asserting that the ban violates the First Amendment. He emphasized TikTok USA's operational independence from ByteDance and questioned the necessity and uniqueness of the government's divestiture requirement.

Notable Quotes:

• Noel Francisco (03:11): "The act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a ban or divestiture, one thing is clear. It's a burden on TikTok speech. So the First Amendment applies."
• Noel Francisco (11:04): "If the First Amendment means anything, it means that the government cannot restrict speech in order to protect us from speech. That's precisely what this law does from beginning to end."

Key Arguments:

• First Amendment Rights: TikTok claims the ban restricts their freedom of expression and that of their users.
• Operational Independence: Asserts that TikTok USA operates separately from ByteDance, thus deserving independent protection under U.S. law.
• Alternative Solutions: Suggests that less restrictive measures, such as disclosures about data risks, could mitigate national security concerns without imposing a full ban.

---

Government's Case

Elizabeth Prelogger, the U.S. Solicitor General, presented the government's stance, focusing on national security threats posed by ByteDance's control over TikTok. She argued that ByteDance could leverage TikTok to collect unprecedented amounts of personal data, which could be weaponized against the U.S. in various ways.

Notable Quotes:

• Elizabeth Prelogger (12:51): "The Chinese government could weaponize TikTok at any time to harm the United States."
• Elizabeth Prelogger (16:08): "ByteDance has misappropriated US data with respect to surveilling US journalists... ByteDance has been asked by the PRC to undertake efforts to censor content and manipulate the platform at the behest of the Chinese government."

Key Arguments:

• Data Collection Risks: Emphasizes the potential for ByteDance to access and misuse sensitive American user data.
• Precedents of Misuse: Cites historical instances where ByteDance allegedly collaborated with the PRC in data misappropriation and censorship efforts.
• National Security Imperative: Stresses that the ban is a necessary measure to protect the United States from foreign interference and espionage.

---

Supreme Court Justices' Responses

Throughout the hearing, Justices probed both sides, revealing the complexities of balancing national security with constitutional freedoms.

Key Interrogations:

• Justice Elena Kagan (06:12): Questioned whether ByteDance's algorithm could be effectively separated from TikTok, probing the feasibility of the divestiture.

  • Quote (06:19): "How are those First Amendment rights really being implicated here?"

• Justice Samuel Alito (04:35 & 09:21): Challenged the application of the First Amendment to a foreign-owned entity and questioned the direct impact on American creators.

  • Quote (04:44): "It's true. The Court has never held that a foreign government has free speech rights."

• Justice Neil Gorsuch (14:01): Addressed the government's argument regarding user awareness and the effectiveness of disclosures.

  • Quote (14:08): "Isn't that a pretty paternalistic point of view?"

Jess Bravin's Insights (11:10): Jess Bravin notes that while TikTok's free speech arguments resonated with the justices, the concerns over data collection and national security were more challenging for the defense to counter effectively.

---

Arguments from TikTok's Creators

Jeffrey Fisher, representing TikTok creators, reinforced the First Amendment issues by highlighting how the ban directly impacts American voices on the platform.

Notable Quotes:

• Jeffrey Fisher (07:49): "TikTok is the most vibrant speech forum in the US."
• Jeffrey Fisher (09:26): "My clients, the creators, are the ones creating that speech and posting it to speak to others."

Key Arguments:

• Vibrant Speech Forum: Emphasizes TikTok's role in fostering diverse and dynamic conversations among Americans.
• Direct Impact on Creators: Argues that the ban stifles the expressive activities of millions of American users who rely on TikTok for creative expression and social interaction.

---

Government's Rebuttals and Justices' Concerns

The Solicitor General faced tough questioning on whether the ban solely targeted ByteDance's ownership or extended to the content and speech of American users.

Notable Exchanges:

• Justice Gorsuch (14:01): Criticized the notion that generic disclosures about manipulation risks are sufficient safeguards.

  • Quote (14:42): "That won't work because it is such a generic generalized disclosure that it wouldn't put anyone reasonably on notice about when it's actually happening."

• Elizabeth Prelogger (15:04): Used analogies to illustrate the inadequacy of broad warnings.

  • Quote (15:04): "Imagine if you walked into a store and it had a sign that said one of 1 million products in this store causes cancer. That is not going to put you on notice about what product is actually jeopardizing your health."

Key Points:

• Effectiveness of Disclosures: The justices questioned whether TikTok's proposed measures would genuinely protect users without imposing a full ban.
• National Security vs. Free Speech: The court remains torn between addressing legitimate security concerns and upholding constitutional freedoms.

---

Judges’ Final Considerations and Predictions

Jess Bravin speculates that the Supreme Court may issue a narrowly tailored decision, addressing the specificities of the TikTok ban without setting expansive precedents that could influence future speech regulations online.

Jess Bravin's Prediction (17:11): "It seems to me that the Court does not want to second guess national security concerns that have such widespread support in Washington... But they had a much, much harder time dealing with the data collection issue. I think the Court would write its opinion in a way that is as narrow as possible to make it as limited as possible to this particular instance involving this app and this law."

---

Conclusion

As the Supreme Court deliberates on whether to uphold or overturn the TikTok ban, the episode underscores the delicate balance between safeguarding national security and protecting individual constitutional rights. With the ruling anticipated before January 19th, the outcome will not only determine TikTok's future in the U.S. but also set a significant precedent for how digital platforms governed by foreign entities are regulated.

---

Notable Quotes Summary

• Kate Linebaugh (00:05): "Today, the Supreme Court took up the TikTok ban."
• Justice Elena Kagan (04:38): "We will be fine without TikTok, but I don't want to have to be."
• Justice Samuel Alito (04:44): "It's true. The Court has never held that a foreign government has free speech rights."
• Justice Neil Gorsuch (14:01): "Isn't that a pretty paternalistic point of view?"
• Jeffrey Fisher (07:49): "TikTok is the most vibrant speech forum in the US."

---

This comprehensive examination of the TikTok Supreme Court case provides listeners with an in-depth understanding of the legal arguments, judicial considerations, and broader implications for social media and national security in the digital age.

Transcript

[Kate Linebaugh]

Today, the Supreme Court took up the TikTok ban.

[Jess Bravin]

We will hear argument this morning in.

[Kate Linebaugh]

Case 24656, TikTok versus Garland and the consolidated case. The justices will determine whether or not the law banning TikTok in the US will go ahead. It's slated to go into effect January 19th.

[Jess Bravin]

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.

[Kate Linebaugh]

That's our colleague Jess Bravin, who covers the Supreme Court. Big picture. What's at stake in this hearing?

[Jess Bravin]

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.

[Kate Linebaugh]

Welcome to the Journal, our show about money, business and power. I'm Kate LINEBAUGH. It's Friday, January 10th. Coming up on the show, will the supreme court uphold the TikTok ban?

[Mint Mobile Ad]

This episode is brought to you by Mint Mobile. If saving is your goal for 2025, switch to mint Mobile. They let you maximize your savings with plans that start at $15 a month when you buy a three. To get this new customer offer, go to mintmobile.comjournal tap the banner to learn more. $45 upfront payment required. Equivalent to $15 a month. New customers on first three month plan only speed slower above 40 gigabytes on unlimited plan. Additional taxes, fees and restrictions apply. See Mint Mobile for details.

[Kate Linebaugh]

After Congress passed a law last year that threatened TikTok, people on the platform had big reactions.

[TikTok User 1]

I've learned so much on TikTok. I have made so many friends on TikTok.

[Jess Bravin]

I've made so many connections.

[TikTok User 1]

They're not taking this away from me.

[Kate Linebaugh]

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.

[Justice Elena Kagan]

We will be fine without TikTok, but I don't want to have to be.

[Kate Linebaugh]

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.

[Noel Francisco]

The act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a band or divestiture, one thing is clear. It's a burden on TikTok speech. So the First Amendment applies.

[Jess Bravin]

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 US 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.

[Kate Linebaugh]

How did the justices respond to the TikTok argument?

[Jess Bravin]

They were skeptical. They seem 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, I thought he had a pretty tough row to hoe there.

[Kate Linebaugh]

Here's Justice Samuel Alito in questioning, saying that because ByteDance isn't a US company, the. The First Amendment doesn't apply.

[Justice Samuel Alito]

It's true. The Court has never held that a foreign government has free speech rights. And if we were to hold that, I would think it would be because speech by a foreign government, particularly one with enormous resources, is not protected allowing that.

[Jess Bravin]

Another question that the Court really grappled with was, whose speech? And what is the speech that is at issue in this case? For example, there is not a restriction on what Americans are saying or can say on this platform. And what seems to be the speech is the confidential algorithm that ByteDance uses to serve up videos to TikTok users. And so what is that algorithm, and how is its speech? And the analogy that the TikTok side gave was, well, try to think of it as like, you know, several floors in a magazine or newspaper offices where you have a collection of brilliant editors who are, you know, choosing the content that the publication will have that is just so unique and so well edited and selected that people will want to use it. And so that itself is a form of expression, a form of speech, and that is what is at issue here. And that if TikTok were severed from ByteDance, it could no longer use that confidential algorithm. And the nature of the app and the nature of what people can see will change.

[Kate Linebaugh]

Justice Elena Kagan asked TikTok's lawyer outright if ByteDance's algorithm can be separated from the platform.

[Justice Elena Kagan]

And I guess my question is, how are those first amendment rights really being implicated here? This, 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?

[Noel Francisco]

No, your honor. And their rights are implicated.

[Kate Linebaugh]

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 Katanji Brown Jackson.

[Justice Elena Kagan]

I mean, if, if TikTok were to post divestiture or whatever, pre divestiture, 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.

[Noel Francisco]

That's theoretically correct, your honor, but I think that also underscores the content based nature of the restriction.

[Justice Elena Kagan]

No, but the change. Excuse me, 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. So isn't this real?

[Kate Linebaugh]

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.

[Jeffrey Fisher]

The US 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.

[Kate Linebaugh]

What did you make of the arguments from Jeffrey Fisher, the Lawyer for the TikTok creators?

[Jess Bravin]

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, 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 party's, 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?

[Kate Linebaugh]

After his opening statement, Fisher faced questions from Justices starting with Clarence Thomas.

[Justice Samuel Alito]

How exactly are the creators speech being impeded?

[Jeffrey Fisher]

So, two ways, Justice Thomas. First, I just point you to the text of the statute, which directly regulates text, images, real time communications, videos. My clients, the creators, are the ones creating that speech and posting it to speak to other.

[Justice Samuel Alito]

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.

[Kate Linebaugh]

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.

[Noel Francisco]

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. If the First Amendment means anything, it means that the government cannot restrict speech in order to protect us from speech. That's precisely what this law does from beginning to end. Whether you look at it.

[Kate Linebaugh]

Overall, how convincing do you think the lawyers were for TikTok and the creators?

[Jess Bravin]

The lawyers for TikTok and the creators brought up significant First Amendment questions that really, I think, touched at this Court's vigilant defense of free speech in most contexts and its great skepticism of government actions that appear to restrict speech. So those I think, were effective and the Court would not be cavalier in its approach to resolving them. But they had a much, much harder time dealing with the data collection issue.

[Kate Linebaugh]

Coming up, what the government argued and how the Supreme Court justices responded. Taxi.

[TikTok User 1]

Imagine hailing a cab with no one in the driver's seat.

[Justice Neil Gorsuch]

Welcome. Please buckle your seatbelt and enjoy the ride.

[TikTok User 1]

Self driving car company Waymo has spent billions developing its tech. What's changed is machine learning.

[Kate Linebaugh]

I'm not really thinking about who's driving.

[TikTok User 1]

But will this big bet pay off for Waymo and its parent, Google owner Alphabet? Find out in Driverless Waymo and the Robo Taxi Race, a new series in the WSJ's Future of Everything feed.

[Kate Linebaugh]

The government's argument for upholding the law banning TikTok rests on national security.

[Elizabeth Prelogger]

The Chinese government's control of TikTok poses a grave threat to national that's the.

[Kate Linebaugh]

U.S. solicitor General Elizabeth Prelogger.

[Elizabeth Prelogger]

The Chinese government could weaponize TikTok at any time to harm the United States. TikTok collects unprecedented amounts of personal data, and as Justice Sotomayor noted, it's not just about the 170 million American users, but also about their non user contacts who might not even be engaging with the platform. That data would be incredibly valuable to.

[Kate Linebaugh]

The prc, PRC or the People's Republic of China. National security leaders from agencies like the FBI, doj, and CIA have been concerned about the Chinese ownership of TikTok for years. They allege ByteDance could have access to user information on TikTok. TikTok says it protects US user data how did the justices respond to the government's case?

[Jess Bravin]

The justices pushed very hard on the free speech question, and they raised a number of precedents and practices from the past which have seen the Supreme Court refuse to endorse restrictions on what Americans can say or listen to, even when they were connected to foreign adversary governments.

[Kate Linebaugh]

Justice Neil Gorsuch pushed back on the idea that TikTok users didn't know the risks of using the app.

[Justice Neil Gorsuch]

Isn't that a pretty paternalistic point of view? I mean, don't we normally assume that the best remedy for problematic speech is counterspeech? And TikTok says it could even live with a disclaimer on its website saying this can be covertly manipulated by China in case anybody were left in doubt after today about that possibility. So you're saying that won't work because.

[Elizabeth Prelogger]

That won't work because it is such a generic generalized disclosure that it wouldn't put anyone reasonably on notice about when it's actually happening. The example I've been thinking about is.

[Justice Neil Gorsuch]

Argument is that the average American American won't be able to figure out that the cat feed feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated.

[Elizabeth Prelogger]

But imagine if you walked into a store and it had a sign that said one of 1 million products in this store causes cancer. That is not going to put you on notice about what product is actually jeopardizing your health. And I think that's so.

[Jess Bravin]

Solicitor General Elizabeth Prelogger had some trouble pushing that line of argument that this really was about ownership rather than content. But she was on stronger ground and got a much more receptive audience on the intelligence dossier angle. The idea that this app sitting on millions of cell phones was busily collecting information for Chinese intelligence that could be exploited in years or decades in the future, that is something that the justices seem to believe was a very legitimate national security concern. And the question being, is this law sufficiently respectful of free speech rights to allow it to go into effect?

[Kate Linebaugh]

Prelogar also emphasized that if ByteDance divests, TikTok could go on functioning. And she ended by focusing on the national security concerns about ByteDance.

[Elizabeth Prelogger]

Finally, with respect to the question of whether ByteDance has taken action on the PRC's demands, there is evidence in the record that Congress consulted to demonstrate that Outside of China, ByteDance has taken action to misappropriate data at the PRC's request that included efforts to track dissidents in Hong Kong, protesters there to track Uyghurs in China itself. We know that ByteDance has misappropriated US data with respect to surveilling of US journalists, and there was evidence in the record reinforcing the conclusion that ByteDance has been asked by the PRC to undertake efforts to censor content and manipulate the platform at the behest of the Chinese government.

[Kate Linebaugh]

Jess expects the justices to rule on this case before January 19th. Right. So after listening to all of these arguments and the questioning, and as a veteran Supreme Court reporter, how do you read the tea leaves for what's going to happen?

[Jess Bravin]

It seems to me that the Court does not want to second guess national security concerns that have such widespread support in Washington. The bill that President Biden signed was passed by large bipartisan majorities of Congress after the lawmakers got briefings from intelligence agencies. But I think the Court is also very concerned about setting a precedent that would open the door to further speech restrictions in the United States. And I think that whatever the Court does to side whichever side it goes on, it will write its opinion in a way that is as narrow as possible to make it as limited as possible to this particular instance involving this app and this law, without saying much more about future regulation of speech in the Internet era.

[Kate Linebaugh]

That's all for today. Friday, January 10th the Journal is a co production of Spotify and the Wall Street Journal. The show's made by Kathryn Brewer, Pia Gadkari Rachel Humphries, Ryan Knudsen, Matt Kwong, Jessica Mendoza, Annie Minoff, Laura Morris, Enrique Perez De la Rosa, Sarah Platt, Alessandra Rizzo, Alan Rodriguez Espinosa, Heather Rogers, Pierce Singhe, Jeevika Verma, Lisa Wang, Catherine Whalen, Tatiana Zemis and me, Kate Linebaugh, with help from Trina Menino. Our engineers are Griffin Tanner, Nathan Singapak and Peter Leonard. Our theme music is by so Wiley. Additional music this week by Katherine Anderson, Peter Leonard, Bobby Lord, Emma Munger, Nathan Singapak, Griffin Tanner, so Wiley and Blue Dot Sessions. Fact Checking by Mary Mathis. Thanks for listening. See you Monday.