A Guide to the Supreme Court Oral Arguments on the TikTok Case

On Friday, January 10, 2025, the US Supreme Court will hold oral arguments to decide whether to uphold or reverse a District Court decision declining to block the Protecting Americans from Foreign Adversary Controlled Applications Act from going into effect. If the Supreme Court upholds the decision, the app stores will be required to block access to TikTok for US users by January 19, just over a week later. A number of key questions emerge from a review of the petitioners’ and government’s briefs to the Court, which are outlined here. How the Justices engage with these questions may give a good indication as to how they will rule.

What to Listen For in the Supreme Court Arguments

The “speaker” of the TikTok feed and their speech rights

A primary concern of the Act is the opportunity for the Chinese government to manipulate TikTok’s For You Feed and use it to influence US public opinion. Despite precedents deeming foreign adversary propaganda to be protected speech, the US government makes a case for an exception here. One of its justifications is that the feed algorithm is developed and maintained by a ByteDance entity in China (where it may be subject to orders from the Chinese authorities) and that foreign entities do not have First Amendment protections. TikTok and its parent, ByteDance, assert that TikTok, a US company, has ultimate control over the feed and that, therefore, any feed curation is protected expression. Even if the foreign parent company is the speaker, it may still have speech rights—if it did not, the petitioners argue that Congress could make a law requiring it to spread views that Congress likes to US users, which seems clearly wrong.

The government also suggests that the covert nature of the feared manipulation is relevant. Rather than participating in the open marketplace of ideas that the First Amendment seeks to protect, the bad actor would be disrupting that marketplace.

Justice Amy Coney Barrett, in her concurrence in Moody v. NetChoice, questioned whether an algorithmic feed is truly expressive and thus deserving of protection. TikTok and ByteDance observe that the issue, in this case, is what might be expressed by a foreign adversary through the algorithm, strongly implying that the First Amendment protects its algorithmic feed. This assertion by TikTok may also be at odds with the opinion of the federal court that recently upheld provisions in California’s SB 976 limiting algorithmic feeds for minors, which may also be a significant blow to TikTok, assuming it survives this Federal law.

A distinction between “interests” and “views”

Chief Judge Sri Srinivasan, in his concurrence with the Appeals Court ruling, considered the appropriate level of scrutiny, in this case, to be intermediate, as “the concern is with the PRC’s manipulation of the app to advance China’s interests—not China’s views….” Srinivasan’s assessment is quoted approvingly in the government brief. (The majority ruling applied strict scrutiny.) The petitioners argue that no such distinction can be made based on precedent or reason. The creators’ reply brief notes that politicians are known to change their expressed viewpoints based on what best serves their goals, and the platform’s reply brief asks if Texas could ban Facebook for advancing the Democratic Party’s “interests.” Indeed, an examination of sincerity seems a surprising requirement for First Amendment protection.

Direct targeting and incidental burden

Core to the government’s case is that the only target of the law is ByteDance and that, as far as the government is concerned, TikTok and all its users are welcome to continue with their protected expression without any changes. However, there are strong indications that should the law go into effect; divestiture will not take place. Thus, TikTok will shutter its US operations, and millions of US users will be forced to stop creating and watching TikTok videos. The government claims that only the direct target of the legislation is relevant for the adjudication of this case; the petitioners disagree and consider the burden on the free speech of the users and TikTok’s US entity as significant.

The TikTok creators raise a related question in their brief: Should they not have the freedom, as part of their speech rights, to collaborate with whatever publisher they choose—even if that publisher runs the risk of foreign adversary interference? Again, even though the Act does not directly target creators, if TikTok and ByteDance do separate, they will still have their speech rights burdened in no longer being able to work with ByteDance (an outcome the government suggests but says it does not want).

The feasibility of divestiture

The government relies heavily on the option of divestiture to counter claims of regulating the speech of American users, as discussed above. The platform, however, claims that it is not a feasible option due to its reliance on software and staffing from ByteDance, as well as global content from TikTok users in other countries. (China has also indicated that it would not permit the export of the main feed algorithm, gutting TikTok’s core value proposition.) This raises the question of the meaningfulness of the divestiture option. If the Court accepts that it is meaningful and that it is indeed also infeasible, could Congress pass any speech restriction on an expression platform with foreign ownership and present a patently impossible divestiture option?

Foreign ownership restriction precedents

There are precedents for restricting foreign ownership of a variety of different businesses for national security reasons. The government claims to be acting in this mode. This history has included radio stations, though it has been established in previous Supreme Court caselaw that spectrum scarcity gave the government increased regulatory powers that would not pertain to online communications. The creators’ reply brief notes that the Soviet Communist Party newspaper, Pravda, was freely published in the US at the height of the Cold War. Though a lack of regulation is not exactly a legal precedent, the petitioners suggest that speech platforms may merit differentiation from the other categories of business that have had restrictions placed on foreign ownership.

Less-restrictive means

An important consideration in First Amendment cases is the demonstration that the law is narrowly tailored to achieve its reasonable ends while minimizing restrictions on protected speech. The petitioners contend that simple disclosures could suffice for the risk of content manipulation and even for the risk of user data being released to the Chinese authorities. With regard to content manipulation, the government rejects that a statement of potential risk would suffice as the national security harms are understood as resulting from a covert action at an unknown time. With regard to data security, the concern is with the impact on the nation and not on individuals who can accept the risk for themselves, so a disclosure would be unsatisfactory.

Petitioners suggest a more general law forbidding the sharing of certain kinds of data with Chinese entities would be another less restrictive measure targeting data security concerns. The government argues that enforcing such a law would be too difficult despite other data protection laws relying on simple prohibitions of this kind.

TikTok/ByteDance and the Committee on Foreign Investment in the United States (CFIUS) spent years negotiating a less restrictive solution, referred to as the National Security Agreement (NSA). At the end of this process, the government ceased discussions without approving the last NSA draft. The platforms claim that this demonstrates that the government was not committed to reaching a less-restrictive solution; the government claims that the process shows that it explored the possibility of a less-restrictive solution but that it was not feasible.

Deference on national security

The courts have traditionally deferred to the political branches, especially the executive, on national security issues. (The President-elect makes the argument in his amicus brief that they should even give deference to his administration-elect, which will be inaugurated the day after the Act is due to come into effect.) The government quoted Supreme Court precedent allowing that national security determinations are based on “informed judgment” and that courts should offer “substantial deference” to the judgments of Congress. But is there a limit to this deference? If strict scrutiny is applied, the Court may be looking for something like an imminent threat. Will the theoretical risks of content manipulation and data acquisition by the Chinese government meet this standard? The creators’ reply brief also claims that restricting the mere “force of ideas,” rather than physical risks or incitement to action, is unprecedented in this context.

The government appears to have offered the Court access to classified material that supports its assessment of a threat to national security. Though it appears that the lower courts declined to consider this evidence (and petitioners request that the Supreme Court take the same decision), if the Court does consider this evidence, it will be interesting to hear what they think the force of it is.

Mixed-motive test

One of the more technical aspects discussed in the briefs regards the applicability and outcome of the Mt. Healthy test. This test is applied in certain cases where a measure is imposed for mixed motives, one impermissible (in the original case, Mt. Healthy City School District Board of Education v. Doyle, this was also a protected speech issue) and one permissible. Where the test applies, the court has to determine if the same measure would have been taken solely for the permissible motive, and if so, it is to be upheld.

The petitioners argue that the test applies in this case; there is an impermissible motive of regulating protected speech; and that the government has not demonstrated that the law would have been passed merely based on the data security concerns (and, in any event, that part is underinclusive, dealing only with TikTok and certain content platforms, and therefore independently suspect).

The government, though not conceding that there was an impermissible motive for targeting content manipulation, argues that the McHealthy test does not apply in this case (and that the selected platforms were targeted for good reason, i.e., that social media acquires more sensitive user data than other platform types) and that even one permissible motive should suffice without the need to prove any counterfactual.

How Will the Supreme Court Rule?

While no one knows for sure the outcome of the case, a couple of commentators have suggested that the Court is unlikely to reverse the appeals court ruling. Gus Hurwitz of the University of Pennsylvania Law School’s Center for Technology, Innovation & Competition, commenting for Bloomberg Law, cites Justice Amy Coney Barrett’s concurrence in Moody v. NetChoice, where she questioned if platforms controlled by foreign entities would have the same speech rights, along with the traditional deference of courts to the political branches. Vox’s Supreme Court watcher, Ian Millhiser, author of two books on the Court, notes the appeals court’s bipartisan consensus and that “none of the [Supreme Court] justices consistently disagree with Srinivasan, Ginsburg, and Rao on any significant political issue.”

The Supreme Court is inclined to take on First Amendment analysis, which is paramount in this case. However, the Justices can also be hesitant to rule decisively in cases relating to the internet. Murthy v. Missouri, a prime free speech and social media case, was decided last year on the procedural issue of standing rather than by clarifying a test for distinguishing government coercion from persuasion. Sometimes, they prefer to make rulings that split the difference on controversial matters, in which case they may decide to reverse opinion with regard to the part of the law that singles out TikTok and allow the general provisions to take their course or to give President Trump the stay he requests in his amicus brief and allow his administration to take the decision out of their hands.

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Links to Briefs

Petitioner and Respondent Briefs

• TikTok Inc. and ByteDance Ltd. | reply brief
• Firebaugh et al. (TikTik creators) | reply brief
• US Government | reply brief

Amicus Briefs

Supporting the petitioners:

• Members of Congress
• American Civil Liberties Union
• Cato Institute
• Knight First Amendment Institute at Columbia University, et al.
• The Copia Institute
• Chris Santospirito, et al. (users)
• National Security Professors Aaronson, Edgar, and Klein
• First Amendment and Internet Law Professors
• Professor Milton Mueller
• Social and Racial Justice Nonprofits
• Foundation for Individual Rights and Expression, et al.

Supporting the US Government:

• Advancing American Freedom
• The Campaign for Uyghurs, et al.
• Chairman of the Select Committee on the CCP John R. Moolenaar, et al.
• Zephyr Teachout and Joel Thayer
• American Free Enterprise Chamber of Commerce
• Montana, et al.
• Former National Security Officials
• Former Federal Communications Commission and Treasury Officials
• Foundation for Defense of Democracies

Supporting neither:

• The Forum for Constitutional Rights
• Asian Americans Advancing Justice | AAJC and the Fred T. Korematsu Center for Law and Equality
• President Donald J. Trump