WASHINGTON — The Supreme Court justices sounded highly skeptical Friday of Tik Tok’s free-speech defense, signaling they are not likely to strike down the law that could shut down the popular video site the day before President-elect Donald Trump takes the oath of office.
The justices, both conservative and liberal, said Congress was concerned with the Chinese ownership of Tik Tok and the threat to national security.
They said law in question was not an effort to restrict the freedom of speech.
“Congress doesn’t care about what’s on Tik Tok,” said Chief Justice John G. Roberts Jr. “Congress is not fine with a foreign adversary collecting all this data on 170 million Americans.”
He said he knew of no court precedent that would call for striking down such a law on 1st Amendment grounds.
In their comments and questions, all the justices appeared to agree.
“This law is targeted at a foreign corporation that doesn’t have 1st Amendment rights,” said Justice Elena Kagan.
In recent years, the justices have often struck down federal regulations, usually on the grounds that Congress had not authorized such a far-reaching rule.
But they are wary of striking down an act of Congress, particularly one that is based on a claim of national security.
The shut-down law is due to take effect on Jan. 19.
“We go dark. We shut down,” Tik Tok attorney Noel Francisco told the court, if it did not act.
Even if the justices were not ready to strike down the law as unconstitutional, he said the justices should issue an order that temporarily delays the law from taking effect.
“A short reprieve would make all the difference,” he said, suggesting that Trump could try to work out a deal that could keep Tik Tok in operation.
In 2020, Trump had issued an executive order to require Tik Tok to separate itself from the Chinese ownership, but it was blocked by courts.
President Biden and Congress took up the issue after receiving classified briefings about the potential threat from ByteDance, the Chinese-controlled company that operates Tik Tok.
The administration tried and failed to work out a deal that would separate Tik Tok from Chinese control.
The shutdown law had the support of large bipartisan majorities in the House and Senate, and Biden signed it in April. By its terms the law was due to take effect in 270 days. That deadline comes on Jan. 19.
The justices agreed to decide Tik Tok’s 1st Amendment appeal on a fast-track schedule, and they are likely to issue a ruling within a few days.
If the law goes into effect, it would be it illegal for service providers such as Google or Apple to “distribute or maintain…a foreign advisory controlled application” in the United States. Violations could result in huge civil fines.
Tik Tok’s best hope may now rest with Trump.
He changed his view of Tik Tok last year, noting that it helped him reach young voters.
Two weeks ago, he filed a brief urging the court to stand aside and to allow him to make a deal with Tik Tok’s owners.
None of the justices asked about Trump’s intervention.
The law allows for a one-time extension of up to 90 days if the president determined there has been “significant progress” toward arranging a “qualified divestiture.”
It is not clear if Trump could invoke that provision to delay the law from taking effect.
Lawyers for Tik Tok called the law an unprecedented attack on the 1st Amendment.
“Shuttering the platform will silence the speech of 170 million monthly American users,” they said.
But Congress and the Biden administration said the Chinese-owned platform gives the People’s Republic of China access to “vast swaths of data about tens of millions of Americans,” which it “could use for espionage or blackmail.
