TikTok’s fate is in the hands of the Supreme Court

Its name is a mouthful, but no one stops to read text of the Protecting Americans From Foreign Adversary Controlled Applications Act, as Congress and the President Joe Biden codified into law last year, may be in doubt that the purpose was to give TikTok and its foreign owners an ultimatum: Sell the wildly popular app to a US-based company or cease operations in the country by a certain date. Can the government do it? That the date happens to be the last full day of the sitting president’s term is the cherry on top—as if the political branches decided that the stakes of keeping the American version of TikTok under the control of the Chinese government were too high to leave to the whims of voters .

There was predictability in that legislative choice. For now that Donald Trump is the president-elect, and the new Congress has made it clear that he cannot have “a big, beautiful bill” to fund his tax cuts and an expansion of the deportation machine he wants to set in motion, there’s simply no telling how the incoming commander-in-chief plans to handle bipartisan consensus that TikTok’s days are numbered – unless and until the People’s Republic of China gives it to a suitable bidder. It won’t happen: China reportedly has anything but opted for an American shutdown if all else fails.

The so-called TikTok ban, which takes effect in 10 days, is now in the hands of the conservative Supreme Court, which has its own history of moving whichever way the wind blows. Just before the holidays, the judges agreed fast track a last-ditch effort by TikTok and Chinese-controlled tech giant ByteDance, plus a group of content creators, to put an end to the divestment or banishment law. Their most important and the only argument is that the First Amendment to the Constitution stands in the way of the US government shutting down a platform that some 170 million users depend on to deliver and consume news, entertainment, culture and more. Congress must make no law abbreviated sharing of these things, they say.

Or can it? The past, present and future attorneys general of the United States – the title given to the government’s top Supreme Court lawyer – all have different views on this issue and how the case should shake out. For their part, TikTok and ByteDance approached Noel Francisco, Trump’s former attorney general and a key defender of everything from his Muslim-targeted travel ban to the failed attempts to kill the Affordable Care Act and protections for Dreamers. In Francisco and his team viewCongress is “silencing a platform of speech used by half the country,” and therefore its ban must be subject to highest form of judicial review—the kind that almost no government action can survive.

To make this argument, the company is more or less arguing that it should be treated as an American publisher making editorial choices — and that its powerful algorithm, the one that determines the dance videos or TikTok challenges that appear in a user’s feed, is related with a newspaper deciding which articles to put before the readers. “If Washington Post used an algorithm to email its subscribers testimonials based solely on predicted subscriber preferences, that would be an editorial choice—a decision to target readers with content they are likely to want, rather than what editors think they should read,” Francisco Francisco writes in a legal card. “The First Amendment fully protects such editorial choices.”

Must really like TikTok Post analogy, if not the newspaper’s place in the national discourse, because later in the same brief, Francisco floats a hypothetical that Congress is trying to make Jeff Bezos sell the paper because lawmakers fear the breadth of his transnational business entanglements could prompt foreign adversaries to pressure him to steer journalism in ways favorable to them. “This law would clearly burden his First Amendment rights,” adds Francisco.

The current Advocate General, Elizabeth Preloger, who are out of a job at noon on Inauguration Day, get one last chance to make an impression on where power lies. Her shortlike others from her tenure, presents a maximalist view of Congress and the president’s prerogative to protect national security. And an order to divest, in this realm, has nothing to do with the First Amendment. “Congress and the executive branch determined that ByteDance’s ownership and control of TikTok poses an unacceptable threat to national security,” she writes, “because this relationship could allow a foreign adversary government to gather intelligence about and manipulate the content received by TikTok’s American users, even if these damages had not yet occurred.”

The government’s two justifications for the legislation — the threat of data mining and espionage by a foreign adversary and the potential manipulation of content in ways that could affect American users—are not just academic. That TikTok is not allowed in China, of all places is potent evidence that ByteDance is well aware of the app’s power to persuade people with content that only ByteDance’s closely guarded algorithm knows how to curate. This means that ByteDance demands freedom of expression here but not at home. (The company operates a TikTok-like alternative, Douyin, in China.) As the United States welcomes a new presidential administration that is already floating a new world order, it’s not hard to imagine a future with China leaning on TikTok to protect its interests here and abroad.