WASHINGTON (OSV News) — The U.S. Supreme Court heard oral arguments Jan. 10 in a challenge to a federal law that would require social media giant TikTok to shut down in the U.S. unless its China-based parent company sells it by Jan. 19.
Congressional lawmakers have said the app, which some estimates say is used by a third of U.S. adults, poses a potential threat to national security, as its parent company, ByteDance, is effectively controlled by the Chinese government.
Legislation passed in 2024 would block TikTok in U.S. app stores unless the social media platform severs ties with ByteDance, which lawmakers say has ties to the Chinese Communist Party. The bill also includes similar prohibitions for other apps “controlled by foreign adversary companies.”
But lawyers for TikTok argued the law runs afoul of both its First Amendment rights and those of its millions of American users.
The Jan. 19 deadline is the day prior to Inauguration Day. Trump, who was previously a critic of TikTok, has appeared more open to it in recent months, even asking the Supreme Court to pause enforcement of the law so that he could “negotiate a resolution” after he takes office.
Rick Garnett, a professor of law at the University of Notre Dame in Indiana, said the case “raises interesting and important questions both about the freedom of speech and about the federal government’s national security powers.”
“It is fundamental constitutional doctrine that governments may rarely censor, punish or regulate speech because of its content, or the viewpoint it expresses,” Garnett told OSV News. “Generally speaking, we rely on the marketplace of ideas, rather than on government supervision. However, it doesn’t appear that the law relating to TikTok’s ownership and control is based on the ideas expressed; instead, it appears to rely on the national security threats presented by enabling a rival government to collect massive amounts of data about users.”
Justice Brett Kavanaugh pushed TikTok’s attorney on lawmakers’ concerns that the app might be used to access the sensitive information of American users by a foreign adversary.
“I think Congress and the president were concerned that China was accessing information about millions of Americans, tens of millions of Americans, including teenagers, people in their 20s,” Kavanaugh said of lawmaker’s intent in passing the law and concern about potential blackmail, adding that some of those same young adults “a generation from now, will be working at the CIA or in the State Department.”
TikTok’s lawyer Noel Francisco replied about the allegations and the law, “I’m not disputing the risks. I’m disputing the means that they’ve chosen,” he said of Congress.
Francisco had a tense exchange with Justice Elena Kagan, who suggested a foreign company doesn’t have First Amendment rights, with Francisco replying, “If you conclude that neither (company) has First Amendment rights, then surely the creators have First Amendment rights.”
Garnett said it “seems likely that the court will say that these threats justify the law’s enactment, and that Congress did not cross the line into censorship of particular ideas or speakers.”
Susanna Frederick Fischer, an associate professor at the Columbus School of Law at The Catholic University of America in Washington, concurred, telling OSV News, “I think it’s more likely than not that the court will uphold the ban, although there may be some dissenters,” citing Justice Neil Gorsuch as one such possibility.
The case, she said, also raises questions for Catholics about discernment in the use of social media.
Pope Francis, Fischer said, has promoted responsible use of the internet, which he called both an evangelization tool and a source of disinformation and gossip.
The court has considered the case on an atypically fast schedule. It is expected to issue a ruling prior to the Jan. 19 deadline, in a case that could have significant implications for law and policy governing social media.
Kate Scanlon is a national reporter for OSV News covering Washington. Follow her on X @kgscanlon.
