Duelling arguments take shape in the TikTok-ban case

DAYS AHEAD OFCBS the showdown in and a fortnight before from —the legal debate over the wildly popular social-media site is coming into focus. On one side of this Supreme Court dispute are the Biden administration and lawmakers who warn that TikTok’s links to the Chinese government threaten national security. On the other are ByteDance (TikTok’s parent company), free-speech advocates, some of the estimated 170m Americans who regularly scroll the app and Donald Trump, the president-elect.The case, slated for oral argument on January 10th, may give the justices a bout of cognitive dissonance. The Supreme Court tends to defer to Congress and the executive branch when concerns about national security arise. Yet the justices also aggressively police freedom of speech.Lawyers found their Christmases ruined when the Supreme Court ordered initial briefs due on December 27th. Their new year’s plans were complicated by a January 3rd deadline for final filings. The question: does the Protecting Americans from Foreign Adversary Controlled Applications Act, a law approved last April by 360-58 in the House and 79-18 in the Senate, and signed by President Joe Biden, violate the First Amendment?Senator Mitch McConnell submitted a feisty amicus brief defending the law, which will remove TikTok from app stores on January 19th unless it is sold to a non-Chinese company. “The right to free speech enshrined in the First Amendment”, he writes, “does not apply to a corporate agent of the Chinese Communist Party.” To hold otherwise means Nikita Khrushchev would have had a constitutional right “to buy and replace The Bing Crosby Show with Alexander Nevsky” (he did not say whether this would have been a good exchange).The Biden administration says that ByteDance permits China, a “foreign adversary”, to “harvest sensitive data about tens of millions of Americans” and to acquire “a potent tool for covert influence operations”. It says the law thwarts such influence without infringing on the First Amendment. Mandating divestment “does not involve speech at all”—just a change of ownership. Lawyers for ByteDance and for individual TikTokers insist otherwise. “No arm of the Chinese government has an ownership stake—directly or indirectly—in TikTok Inc. or ByteDance,” the company says. The ban will harm the 17% of American adults who “regularly get news from TikTok” and cut off the flow of clips from American creators, who uploaded 5.5bn in 2023.The American Civil Liberties Union, Electronic Frontier Foundation and Knight First Amendment Institute at Columbia University say the ban would close “a vast universe of expressive content, from musical performances and comedy to politics and current events”. The Cato Institute dusts off John Stuart Mill’s “On Liberty” to argue that even “propaganda” deserves protection: the First Amendment “foreclose[s] public authority from assuming a guardianship of the public mind”.Mr Trump, whose previous scepticism about TikTok has softened as he has amassed 14.7m followers on the platform, tells the justices he “is uniquely situated” to “vindicate” the “free-speech rights of all Americans”. As “one of the most powerful, prolific, and influential users of social media in history”, and with his “consummate dealmaking expertise”, Mr Trump should have the chance to broker a “negotiated resolution”. He wants the Supreme Court to pause. But for all its boasting, Mr Trump’s brief takes no position on the legal questions in the case. Without a legal justification, the court has no basis for delaying the reckoning. So if the app survives, its salvation will have little to do with the incoming president’s intervention.Many experts see TikTok’s days ticking to a close. Raffi Melkonian, a Supreme Court litigator, thinks the Foreign Adversary Law should be struck down but suspects the justices will not do so. Genevieve Lakier, a First Amendment scholar at the University of Chicago law school, says the justices tend to view freedom of speech “very narrowly when claims of national security are invoked by the federal government”. But she hopes the court does not “shut down such an enormously important speech platform”. A TikToker known as “stephen rigatoni” agrees. “I feel like if I sat down and had one singular Coors Light with the Supreme Court”, he said in a recent video, “we could figure it out.”