TikTok ban: How both sides made their case to the Supreme Court and what the justices asked

On Friday, the nation’s highest court heard arguments on whether to uphold or block a law that could effectively ban TikTok​ in the U.S.

The bill, signed into law by President Biden in April 2024, gives TikTok’s parent company ByteDance until January 19 to divest its U.S. operations or face a ban in the country.

The session, which came just nine days before the January 19 deadline, was TikTok’s last legal stand against the looming ban. TikTok’s lawyer stated that the social network is prepared to “go dark” on January 19 unless the Supreme Court intervenes.

Over the span of two and a half hours, lawyers for both sides presented their case to the Supreme Court justices. We’ve rounded up the key arguments made by all sides, explained what exactly the Justices wanted to know, and what could happen next.

TikTok’s key arguments against the ban

• A TikTok ban or divesture is a burden on TikTok speech, so this is a case about U.S. users’ First Amendment rights. Its rights are being impacted because, in 10 days, it will lose its right to speak, unless it divests its business.
• The law is “content-based,” as it only applies to social media platforms that host user-generated content, except for business, product, and travel reviews. This effectively singles out TikTok. The company stresses there’s no way to get around the fact that this is content-based speech restriction since the U.S. government is worried that ByteDance could force TikTok to adjust its mix of content, for instance by making it pro-Chinese or anti-American. Content manipulation is an “impermissible” government interest, as the U.S. government doesn’t regulate other news sources it may not like, such as CNN or Fox News.
• TikTok could address concerns about China’s government using the platform to influence Americans’ views with a risk disclosure — like an in-app warning.
• The U.S. government’s data security concerns aren’t strong enough to justify the law, especially since U.S. TikTok is a subsidiary of Chinese parent company ByteDance and U.S. TikTok user data is hosted on Oracle servers in Virginia.
• The law ignores a less restrictive alternative — simply banning TikTok from sharing sensitive user data with anyone, including China, at the risk of heavy fines, jail sentences, or a full app shutdown. This was a new argument TikTok just introduced today, despite years of discussions, the DOJ’s lawyer noted. Plus, the company said, the U.S. government has a lot of different ways it could address its concerns over TikTok with speech-neutral laws (those that don’t impact First Amendment rights.)
• A divestment is not feasible in any timeline and is impossible because China would prevent the export of its algorithm. Even if TikTok were to do so, it would take years and the final product would be very different from what the app is today.
• If the government is worried about China accessing the sensitive data of American citizens, it should also be concerned about Chinese e-commerce apps like Temu and Shein. These apps have access to users’ activity across apps, including social media, along with their names, addresses, credit card information, location data, and more.

Creators’ key arguments against the ban

• The law directly restricts creators’ First Amendment rights to participate and speak in the “modern public square.” The act should therefore be subject to “strict scrutiny” because American creators have always been able to speak in conjunction with foreign speakers or work with foreign publishers.
• Under the First Amendment, “mere ideas” do not constitute a national security risk. And restricting the right to speech is what our enemies do, not what we do in the U.S.
• The owner of a print media or online media publication is the “essence of the viewpoint of that publication,” just like with Fox News, MSNBC, or X. Creators should be able to work with any publication that has a particular perspective.
• TikTok could be used to sow doubts about democracy. That’s an “impermissible” government interest. The U.S. government can restrict Americans from associating with terrorist organizations or others that present a clear and present danger, but in this case, the government’s concerns are about the influence of TikTok’s content and algorithm.
• Creators have the right to work with their publisher of choice, which for them, is TikTok. The ban would prevent creators from exercising their free speech rights to work with a foreign company to publish their speech. It’s as if creators weren’t allowed to work with the BBC or other foreign companies.
• Companies have tried to replicate TikTok and failed, so that shows how important the app’s algorithm is to creators. It’s not fair to tell creators to simply post their work on other platforms. They are ordinary American citizens who rely on the app’s ability to reach others.

The DOJ’s arguments for the ban

• The law doesn’t violate the First Amendment because it doesn’t aim to regulate free speech on the platform or its algorithm. It instead wants to remove the ability for a foreign nation to get American data and exercise control over the platform. The same sort of content could be distributed on the platform post-divestiture.
• The Chinese government could compel ByteDance to secretly turn over data. A wealth of data about Americans goes to China in order for the platform to just continue its basic operations, and the People’s Republic of China can demand ByteDance turn the data over. The U.S. government can’t expect ByteDance to act in “good faith.”
• TikTok presents a risk because if China did access the personal information of Americans, it would have data on a generation of teens who may grow up to hold key offices, like in the CIA, FBI, or State Department. TikTok conceded that’s a risk, but that’s why the data is being stored on Oracle servers in Virginia, it said.
• ByteDance was already found to be surveilling American journalists. There was a well-publicized incident where ByteDance employees surveilled U.S. journalists using their location data.
• A divestment follows “a long tradition” of barring foreign control of U.S. communications channels and other critical infrastructure. The law doesn’t suppress specific types of content, it focuses on preventing a foreign adversary from advancing its geopolitical goals, such as getting Americans to argue with one another and to create chaos “in order to weaken the United States.”
• TikTok cannot be compared to a traditional publisher because a newspaper doesn’t collect sensitive personal information with the capacity to send it back to a foreign adversary.
• If the Supreme Court upholds the law, it will finally force ByteDance to complete divestment talks and figure out a way to keep the app operating in the United States. Congress figured ByteDance would play a “game of chicken” with the legal system while claiming a sale is not plausible.

What the justices wanted to know

• What’s “TikTok speech?” That’s its algorithm that reflects the best mix of content in its view — essentially TikTok’s editorial discretion combined with its moderation elements. TikTok cannot run this algorithm without divesting its business, the company argued, which is why it’s a burden on its “speech.”
• How can the court ignore the fact that TikTok is owned by a Chinese company, ByteDance, which is subject to Chinese law? (Especially because that law allows China’s government to access and control private data the company holds?) TikTok’s lawyer disputed that ByteDance had “ultimate control” over TikTok and argued also that it didn’t matter with regard to the arguments around its First Amendment rights.
• If TikTok has a First Amendment right to speech, what level of scrutiny should be applied? There were a lot of discussions throughout the hearing about whether this would merit high or intermediate scrutiny, which are standards of judicial review that, when applied, determine whether First Amendment protections are permissible. High-scrutiny cases require a higher standard when it comes to the burden of proof, and are often struck down. (Of course, that’s the level of scrutiny that TikTok wants!) TikTok said that both the speech argument and user data security concerns deserve high scrutiny, in its opinion.

• What does TikTok think about the long tradition of preventing foreign control and ownership of media in the U.S., like radio and TV? TikTok said this wasn’t important because all of that history was a time of “bandwidth scarcity,” where there were a limited number of licenses available. TikTok and the web exist in an era where there is “no scarcity,” the company argued.
• Why does TikTok dispute the fact that the company must abide by ByteDance’s directives when it comes to its algorithm and recommendation engine? The U.S. government says TikTok U.S. cannot adjust these on its own. TikTok disagreed, saying TikTok is a U.S. subsidiary and “does have a choice over the algorithm.” Not only that, but it would be a “bad business decision” for them to abandon it. Because of this independence, TikTok should have its own set of First Amendment rights, the company’s lawyer argued.
• Doesn’t the Chinese government have some control over the recommendation engine, given that it said it would not permit a forced divestment? No, TikTok said. What it means is that there are parts of TikTok’s source code that include IP owned by the Chinese government and they’d restrict the sale of that to foreign governments.
• Why doesn’t TikTok think the divesture is possible? Or possible within the 270 days provided by law? The company said it would be “exceedingly difficult” under any time frame for a couple of reasons. One, divestiture wouldn’t allow U.S. engineers to coordinate with Chinese engineers on TikTok’s global team. Also, divestiture would separate the U.S. content from the global content on the app, and vice versa, which would “fundamentally” change the nature of the app. TikTok said it would take “many years” to construct a new team of engineers to convert the source code.
• The U.S. government doesn’t have evidence that TikTok has engaged in covert content manipulation in the U.S. but its parent ByteDance has responded to PRC (China’s government) demands to censor content in China and other regions. Why does TikTok deny this? TikTok’s lawyer said they couldn’t fully respond because the record there was redacted, so they don’t know what it says. However, the company noted that TikTok’s transparency reports indicate that it has not removed or restricted content on TikTok in other parts of the world. (And TikTok itself doesn’t operate in China. Its sister app, Douyin, does.)
• The law is targeted at ByteDance, not TikTok, so why doesn’t ByteDance just open source what TikTok needs to divest so it can keep operating? TikTok’s lawyer danced around this question, arguing that TikTok and to some extent, ByteDance, have First Amendment rights to speech. And even if the court disagrees with that, TikTok argued that its creators have speech rights.
• The court also wanted to know what sort of case or cases TikTok thought had set any sort of precedent around the regulation of a corporate structure involved a direct regulation of expressive content. TikTok’s lawyer, Noel Fransisco, didn’t know of any. “I would concede that this is a pretty unprecedented case. I’m not aware of any time in American history where the Congress has tried to shut down a major speech platform,” he said.

What could happen next 

• If TikTok loses its case, the app will “go dark.” App stores will remove it and other service providers will stop allowing access.
• If the Supreme Court issues a preliminary injunction, it would buy TikTok some time to get a lifeline from President-elect Donald Trump, who takes office a day after the deadline and has asked the Supreme Court to pause the law. Trump has vowed to save the app and was spotted dining with TikTok CEO Shou Zi Chew last month.
• TikTok could get an extension to the January 19 deadline in order to find a buyer, although this seems unlikely because TikTok is prepared to shut down rather than sell its U.S. assets.