'I ain’t gonna lie bro. We cooked.'

The Supreme Court heard about two hours of arguments over the future of TikTok today. The basic argument here is between TikTok which claims it is all about free speech both for the 170 million Americans who use the platform and the US subsidiary. On the other hand, the US government says the app presents a national security threat because it is owned by a Chinese company subject to the Chinese government. Under Chinese law, companies are required to turn over any data the government requests at any time. The consensus after today’s arguments concluded is that the Supreme Court sounds likely to uphold the ban passed by congress last year.

After more than two hours of argument, a majority of justices seemed to embrace Congress’s national security concerns about the ability of the Chinese government to harvest the sensitive data of millions of American users and to potentially use that information to blackmail young Americans or turn them into spies.

“That seems like a huge concern for the future of the country,” said Justice Brett M. Kavanaugh.

So that’s the likely outcome but let’s walk through some of what happened today. Noel Francisco, a lawyer for TikTok, argued the US government has “no valid interest in preventing foreign propaganda.”

At TikTok ban hearing before SCOTUS, TikTok’s lawyer, Noel Francisco, says “the government has no valid interest in preventing foreign propaganda.” pic.twitter.com/DksrPSeyrQ

— The Recount (@therecount) January 10, 2025

Justice Elena Kagan took issue with that, suggesting that a Chinese company does not have First Amendment rights in the US. But Noel Francisco argued that they did.

“To the extent ByteDance is speaking in the United States, it … has First Amendment rights,” Francisco said. “If you conclude that neither [TikTok nor ByteDance] has First Amendment rights, then surely the creators have First Amendment rights.”

Obviously the First Amendment rights of US individuals exist, but that does not mean any particular person has a constitutional right to use a specific platform. I can’t write for the NY Times just because I’m an American with First Amendment rights. I can’t even submit comments there unless I subscribe. Meta, X and TikTok all have the ability to set content standards and remove users for violating those standards and no one thinks that violates the First Amendment. In other words, the rights of individual Americans don’t transfer themselves to the Chinese owners of TikTok.

It turns out that Justice Amy Barrett issued an opinion in July which goes directly to this issue:

“Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves,” she wrote. “But foreign persons and corporations located abroad do not.”…

“What if the platform’s corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate?” she asked. “Would it matter that the corporation employs Americans to develop and implement content moderation algorithms if they do so at the direction of foreign executives?”

“Courts may need to confront such questions,” she added, “when applying the First Amendment to certain platforms.”

TikTok has simultaneously argued that its US operation is separate from ByteDance, the Chinese company that created it, but has also said that selling the company is not an option because the Chinese government won’t allow it.

TikTok has also said in legal filings that a major reason it cannot be sold is because “the Chinese government regulated the transfer of technologies developed in China,” which would prevent the export of its all-important recommendation technology.

So China isn’t in charge except that, when it comes to a sale, China is in charge.

Justice Kagan once again pointed out that even if US TikTok will lose access to ByteDance’s algorithm if it divests, it has other options. “The statute only says to this foreign company, divest or else, and leave TikTok with the ability to do what every other actor in the United States can do, which is go find the best available algorithm,” she said. She’s right about that. US TikTok can be severed from ByteDance even if that means they lose access to the Chinese algorithm that the Chinese government refuses to allow to be sold.

After a little over an hour U.S. Solicitor General Elizabeth B. Prelogar began making arguments in defense of the ban. Here she is making the case that this is not a free speech issue for anyone except ByteDance.

“All of the same speech that’s happening on TikTok could happen post-divestiture. The act doesn’t regulate that at all. So it’s not saying you can’t have pro-China speech, you can’t have anti-American speech. It’s not regulating the algorithm. TikTok, if it were able to do so, could use precisely same algorithm to display the same content by the same users. All the act is doing is trying to surgically remove the ability of foreign adversary nation to get our data and to be able to exercise control over the platform.”

Chief Justice John Roberts got in a good quip.

he asked Solicitor General Elizabeth B. Prelogar whether she was arguing that “ByteDance might be, through TikTok, trying to get Americans to argue with each other.”

When Prelogar replied she was, Roberts quipped drily that they had already won.

Prelogar also argued that China couldn’t be trusted with the data at its disposal.

TikTok, which is owned by ByteDance, sends “a wealth of data about Americans” back to China to keep the app functioning, Prelogar said. That “creates this gaping vulnerability in the system, because when that data is in China, the [Chinese government] can demand that ByteDance turn it over and keep that assistance secret.”

Prelogar also said regulators couldn’t expect ByteDance to comply with U.S. government requirements in “good faith.”

Meanwhile, TikTok users outside the courtroom seem aware this is not going well.