The Supreme Court doesn’t seem likely to save TikTok
On Friday, the Supreme Court heard oral arguments in a case that will decide if the popular social media app TikTok can still exist in the United States once a law that effectively bans the app goes into effect January 19. After the arguments, it’s not looking good for TikTok fans.
The first two-thirds of Friday’s argument in TikTok v. Garland were about as lopsided as any court hearing can be. The justices grilled two lawyers arguing that TikTok should be allowed to continue to operate, because the federal law banning it violates the First Amendment.
At the heart of the case is the fact that TikTok is owned by ByteDance, a company based in China, a US adversary. Last year, a federal law was enacted that effectively bans TikTok in the United States unless the company is sold to a new owner — one that cannot be controlled by the Chinese government (or by some other foreign adversary). According to TikTok’s legal team, the law would force TikTok to “go dark” in the United States on January 19, and that shutdown violates Americans’ right to freedom of speech.
By the time the two lawyers arguing against the ban — Noel Francisco who represents TikTok, and Jeffrey Fisher who represents a group of TikTok users — took their seats, it appeared likely that all nine justices would vote unanimously to uphold the ban.
That said, the picture grew more nuanced after US Solicitor General Elizabeth Prelogar stood up to defend the ban. Many of the justices seemed skeptical of Prelogar’s most aggressive legal arguments, which suggest that a law that shuts down a forum that tens of millions of Americans use to engage in free speech does not implicate the First Amendment at all. And some of them, particularly Justices Samuel Alito and Neil Gorsuch, expressed idiosyncratic concerns, which suggest they may ultimately side with TikTok.
Still, Francisco and Fisher’s time at the podium went so badly that it is hard to see TikTok prevailing — all nine of the justices took turns grilling these lawyers with questions that cut at the core of Francisco and Fisher’s arguments. It is likely that many of the skeptical questions Prelogar faced, by contrast, were driven by concerns about overreaching in a decision ruling in TikTok’s favor, rather than by a desire to see TikTok prevail.
Broadly speaking, the TikTok case pits two well-established legal rules against each other. As a general rule, the government does not get to........
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