Illustration: Aïda Amer/Axios
All eyes are on the Supreme Court justices now that TikTok and the Biden administration have made their case on whether banning the app violates freedom of speech.
Why it matters: SCOTUS could decide as early as today whether to pause the ban while the court decides if the law is unconstitutional. But justices appeared skeptical of TikTok's overall arguments.
- President-elect Trump and TikTok have both asked for a pause of the law, which is set to take effect on Jan. 19.
Here are our big takeaways from the arguments:
1. Justices were skeptical of TikTok's First Amendment arguments.
- TikTok tried to convince the court that the real harm of the law is for TikTok — a U.S. company with First Amendment rights — not ByteDance.
- But justices were focused on how the law targets ByteDance, not TikTok.
- Justice Elena Kagan: "The law is only targeted at this foreign corporation which doesn't have First Amendment rights. Whatever effect it has, it has."
- Justice Amy Coney Barrett: "If ByteDance divested TikTok, we wouldn't be here, right?"
2. Justices were skeptical that this case has nothing to do with the First Amendment.
- DOJ wants to make this case about data privacy concerns and China's access to massive troves of sensitive information, which DOJ argues has nothing to do with protected speech, a right China does not have.
- But data access matters in the first place, according to the government, because it would allow for covert influence operations on the platform — an activity that does relate to content and, therefore, speech.
- Multiple justices grappled with what "covert" operations even means.
3. There is ambiguity about what will happen on Jan. 19.
- TikTok said the app will go dark and "essentially the platform shuts down."
- Asked to spell out what a shut down means, attorney Noel Francisco said that at minimum the app will not be available in app stores and there's also "enormous consequences" for service providers still carrying the app.
- DOJ, meanwhile, said "there is nothing permanent that happens on Jan. 19."
4. It would be risky to ignore the law simply because the president isn't enforcing it.
- Justice Sonia Sotomayor in a line of questioning to DOJ clarified that on Jan. 19, if the app is not shut down it will be a violation of the law.
- "And whatever the new president does doesn't change that reality for these companies?" Sotomayor asked. Solicitor General Elizabeth Prelogar replied, "That's right."
- The statute of limitations would be five years, Prelogar added.
Context: The D.C. Circuit Court of Appeals, a broad bipartisan group of lawmakers, and Trump during his first term have all supported cutting TikTok's ties with China.
- But Trump has flip-flopped on his stance, and in a filing to the Supreme Court he asked for an opportunity to negotiate a deal while the ban is paused.
What's next: The court could quickly issue an order about whether to halt the Jan. 19 deadline.
