Getty ImagesThe future of the divest-or-ban law for TikTok now rests in the hands of the US Supreme Court after a three-hour hearing ahead of a looming deadline for the social media platform.
On Friday, the court’s nine justices heard from lawyers representing TikTok, content creators and the US government over whether the law requiring its ban in the US – unless sold by parent company ByteDance – threatens free speech.
Noel Francisco, a former US solicitor general appearing for the platform, stressed the ban would undermine that constitutional right for some 170 million American users.
A representative for platform creators argued they should be free to use the publisher of their choice.
But the government urged the justices to uphold the law passed by Congress last year.
It passed the law against TikTok with support from both the Democratic and Republican parties – a moment that marked the culmination of years of concern about the wildly popular platform, which is known for its viral videos and traction among young people.
It requires ByteDance to sell TikTok in the US or cease operations on 19 January.
On Friday, justice department lawyer Elizabeth B Prelogar argued before the court that ByteDance’s ties to the Chinese government made it a national security risk.
She told the court that Beijing “could weaponise TikTok at any time to harm the United States”.
She later said that a warning placed on TikTok to users would not be enough to address concerns about its ties to China, and would not adequately address the issues of national security.
Near the end of the hearing, Mr Francisco sought to drive home the argument that “the government cannot restrict speech in order to protect us from speech”.
“That’s precisely what this law does from beginning to end.”
But his arguments came under keen scrutiny from the justices, who returned time and again to the national security concerns that gave rise to the law in the first place.
Justice Brett Kavanaugh drilled into concerns the US government has raised about the data the app collects on its users and how that data might be used.
The risks related that seem like a “huge concern for the future of the country”, he said.
The Trump question
In December, US President-elect Donald Trump urged the court to delay its decision until he returns to the White House to enable him to seek a “political solution” to resolve the issues at hand.
TikTok’s lawyer told the court on Friday that, as he saw it, the platform would “go dark” on 19 January without intervention.
Ms Prelogar, arguing for the US justice department, said “nothing permanent” had to happen on that day and there was still time for a sale.
Forcing the app to go dark could be just the “jolt” ByteDance needs to seriously consider a sale, she said.
“It will fundamentally change the landscape with respect to what ByteDance might consider,” she said, comparing the situation to “game of chicken” and one in which the US should not “blink first”.
The justices and will now consider their decision. A ruling is expected in the coming days.
More than a hundred people braved freezing conditions in Washington DC to attend the hearing in person.
Danielle Ballesteros, a student at UC San Diego, said had been waiting outside the court since 06:30 local time.
“I feel like TikTok doesn’t deserve to be banned,” she told BBC News.
While admitting to using it “probably too much”, she said she believes the app to be an important news source for her generation.
The legislation passed by Congress does not forbid use of the app, but would require tech giants such as Apple and Google to stop offering it and inhibit updates, which analysts suggest would kill it over time.
The US argues that TikTok is a “grave” threat because the Chinese government could coerce its owner, ByteDance, to turn over user data or manipulate what it shows users to serve Chinese interests.
TikTok has repeatedly denied any potential influence by the Chinese Communist Party and has said the law violates the First Amendment free speech rights of its users.
TikTok is already banned from government devices in many countries, including in the UK. It faces more complete bans in some countries, including India.
Last December, a three-judge appeals court decision upheld the law, noting China’s record of acting through private companies and saying the measure was justified as “part of a broader effort to counter a well-substantiated national security threat posed” by the country.
Jeffrey L Fisher, a Stanford University law professor representing creators who sued over the law, told the court on Friday that the country has historically faced “ideological campaigns by foreign adversaries”.
But he said that under the First Amendment, mere ideas do not represent a national security threat.
